I 


I/I  B  RARY 

OF  THE 

U  N  I  VLR.S  ITY 
Of    ILLINOIS 


Av%8c 

cap. 


ILL    H!51.  SUkltf 


^^^5^ 

f 


THE 


CONSTITUTIONAL  HISTORY 


OF 


ILL  INOIS. 


BY 

HON.    ELLIOTT    ANTHONY, 

Judge  ol  ibe  Superior  Court  of  Chicago. 


CHICAGO: 
CHICAGO  LEGAL  NEWS  PRINT. 

1891. 


CONTENTS. 


PAGE. 

CHAPTER  I. — This  is  an  Age  of  Written  Constitutions 5 

CHAPTER  II. — The  Advantages  of  Written  Constitutions 8 

CHAPTER  III. — The  American  Constitutional  Form  of  Government  the  Strong- 
est in  the  World 11 

CHAPTER  IV.— The  Ordinance  of  1787— The  Great  Organic  Law  of  the  North- 
west   14 

CHAPTER    V. — The    Efforts    to    Perpetuate    Slavery    Notwithstanding    the 

Ordinance 16 

CHAPTER  VI.— The  First  Court  Ever  Held  in  the  Northwest  Territory 18 

CHAPTER  VII. — The  Organization  and  Admission  of  New  States 20 

CHAPTER  VIII. — The  Admission  of  Ohio  and  Indiana  into  the  Union 23 

—CHAPTER  IX. — The  Admission  of  Michigan  and  Wisconsin  into  the  Union 27 

CHAPTER  X. — Illinois  and  Virginia — George   Rogers    Clark  and  the  Back- 
woodsmen    29 

>  CHAPTER  XI. — Illinois  County 33 

CHAPTER  XII. — Constitutional  Conventions  in  Illinois...., 38 

CHAPTER  XIII. — The  Founders  of  the  Commonwealth 46 

CHAPTER  XIV. — Governor  Coles,  and  his  Immediate  Friends  and  Contem- 
poraries   50 

CHAPTER  XV. — The  Great  Convention  Struggle  of   1823-4  to  make  Illinois  a 

Slave  State 66 

CHAPTER  XVI. — The  Development  of  Infant  Industries,  or  how  Banking  can 

be  Carried  on  by  Politicians 73 

;  CHAPTER  XVII. — Repeal  of  the  Black  Laws  of  Illinois. 77 

<j  CHAPTER  XVIII. — Mason  and  Dixon's  Line  in  Illinois 87 

''.CHAPTER  XIX. — The  Period  Preceding    the    Calling  of  the   Constitutional 

Convention  of  1847 91 

CHAPTER  XX. — The  Partisan  War  on  the  Supreme  Court  and  the  Reorganiza- 
tion of  the  Same 93 

(•i:\pTERXXI.-The  Constitutional  Convention  of  1847 103 

CHAPTER  XXII.— Constitutional  Convention  of  1862 109 

CHAPTER  XXIII.— Constitutional  Convention  of  1869-70 116- 

CHAPTER  XXIV. — Is  a  Constitutional  Convention  Needed 124 

CHAPTER  XXV. — Radicalism  and  Conservatism 128 

CHAPTER  XXVI. — Limitations  and  Restraints  are  Necessary  in  all  Free  Gov- 
ernments . . . , -. 136 

CHAPTER  XXVII. — The  Power  and  Scope  of  a  Constitutional  Convention....  139 

X  CHAPTER  XXVIII. — Legislative  Provisions  in  Modern  Constitutions 143 

CHAPTER  XXIX. — An  Examination   of  Some  of  the  Objections  Which  Are 

Urged  against  the  Present  Constitution 145 

(1) 


2  CONTENTS. 

PAGE. 

CHAPTER  XXX. — The  Administration  of  the  Criminal  Law  in  the  State  of 

Illinois 148 

CHAPTER  XXXI.— State  and  Federal  Judges 153 

CHAPTER  XXXII. — Constitutional  Convention  Necessary  to  Induce  the  Su- 
preme Court  to  Recognize  and  Enforce  the  Statutes  Relating  to  the 
Common  Law 156 

CHAPTER  XXXIII. — The  Address  of  the  Delegates  to  the  People,  Showing 

the  Changes  made  in  the  Old  Constitution  and  the  Reforms  Proposed. .  161 

CHAPTER  XXXIV. — How  State  Taxes  have  been  Diverted.  School  Lands 
Stolen,  and  other  Abuses  under  the  old  Regime,  with  some  Remarks  on 
the  Value  of  the  "  Pay  as  You  Go  "  Policy 171 

CHAPTER  XXXV. — The  Organization  and  Government  of  Great' Cities 176 

CHAPTER  XXXVI.--Frequent  Changes  in  the  Organic  Law  of  a  State  not 

Desirable 185 

CHAPTER  XXXVII. — Illinois  ought  to  be  a  Model  Republic,  with  a  Constitu- 
tion and  Laws  to  Correspond 189 

CHAPTER  XXXVIII.— Public  Virtue 191 

CHAPTER  XXXIX. — No  State  will  ever  be  Prosperous  under  any  Constitution 

unless  the  People  are  Educated 195 

CHAPTER  XL. — The  Right  of  American  Citizens  to  be  Protected  in  Exercising 

the  Elective  Franchise 197 

CHAPTER  XLI. — Conclusion . .  202 


"TT'TTTHIN  tlie  period  of  seventy-three  years  the  people  of 
Illinois  have  held  four  constitutional  conventions  and  have 
become  somewhat  conversant  with  constitution-making  and  political 
science. 

The  genius  of  our  people  for  statecraft  was  early  developed, 
and  the  number  of  state-artificers  which  was  then  produced,  shows 
no  signs  of  abatement. 

Of  the  four  conventions  referred  to  it  has  fallen  to  our  lot  to  be 
a  member  of  two  of  them,  one  in  1862  and  the  other  in  1870,  which 
framed  our  present  Constitution. 

Many  of  the  members  of  these  conventions  were  men  of  great 
experience,  and  whose  knowledge  of  events  reach  back  to  the  very 
beginnings  of  our  history  as  a  State. 

It  had  long  been  in  contemplation  by  us  to  write  a  sketch  of 
these  various  conventions,  together  with  an  account  of  events  that 
preceded  and  called  them  into  existence,  and  of  some  of  the  public 
men  that  took  part  in  them,  when  we  received  an  invitation  from 
the  State  Bar  Association  to  read  a  paper  before  that  body  upon  the 
needs  of  a  constitutional  convention  to  revise  and  amend  our 
present  Constitution.  Upon  considering  the  matter  we  resolved  to 
at  once  make  use  of  the  materials  already  on  hand,  not  only  by  way 
of  review  of  some  of  the  most  interesting  events  in  our  State  history, 

(3) 


4  INTRODUCTION. 

but  to  discuss  in  the  light  of  experience  at  considerable  length  the 
whole  subject  of  written  constitutions  and  what,  if  anything,  was 
required  by  way  of  amendments  to  our  own  organic  law  as  it  at 
present  exists.  Such  a  work  we  have  ventured  to  characterize  as 
a  '"'Constitutional  History  of  Illinois,"  and  which  may  be  regarded 
as  a  special  study  of  one  phase  of  our  history  not  hitherto  treated 
of  by  any  of  our  historians. 

We  submit  it  with  great  deference  to  our  fellow-citizens,  hoping 
that  we  may  be  able  to  contribute  in  some  slight  degree  to  a  better 
understanding  of  some  of  the  most  stirring  events  in  the  formative 
period  of  this  great  commonwealth,  and  of  the  men  who  took  part 
in  them. 

ELLIOTT  ANTHONY. 
CHICAGO,  January  23,  1891. 


CHAPTER  L 

This  is  an  Age  of  Written  Constitutions. 

T^HE  present  is  an  age  when  the  powers  of  the  government  are 
sought  to  be  defined  and  limited  so  that  the  people  may  know 
their  rights,  and  those  who  govern  may  not  invade  them. 

It  is  an  age  of  written  constitutions,  and  it  is  a  curious  fact 
that  to-day  there  is  not  a  government  in  Europe,  except  those  of 
Russia  and  Turkey,  but  what  are  constitutional  governments;  while 
upon  the  American  continent,  since  Brazil  became  a  republic,  not 
a  single  monarchy  exists.  Most  European  constitutions  are  usually 
found  written  in  some  law  which  has  been  passed  and  promulgated 
by  representatives  of  the  people,  which  the  king  or  ruler  has  been 
graciously  pleased  to  approve,  conferring  upon  the  people  the  right 
of  representation  and  taking  part  in  making  the  laws;  while  in  the 
United  States,  where  it  is  held  that  "all  power  is  inherent  in  the 
people  and  all  free  governments  are  on  their  authority  and  insti- 
tuted for  their  peace,  safety  and  happiness,"  a  much  more  elaborate 
form  is  made  use  of,  and  the  most  exact  details  are  required  to 
define  and  regulate  the  sovereign  powers  and  the  measure  of 
authority  of  all  the  departments  of  the  government — legislative, 
executive,  judicial,  civil  and  military — general  and  local,  and  each 
and  every  function  of  the  government. 

The  problem  is  to  confer  authority  and  so  reserve  liberty  that 
each  shall  serve  as  a  check  or  balance  upon  the  other,  and  that  each, 
without  being  dangerous  in  itself,  may  help  and  not  encroach  upon 
the  other. 

The  days  of  charters  and  special  privileges  have  passed  away, 
and  absolute  equality  before  the  law  is  the  only  condition  which 
the  people  of  this  country  will  accept  or  tolerate. 

The  publicists  of  Europe  hold  that  all  power  of  government  is 
derived  from  God  through  the  instrumentality  of  kings,  while  the 
political  creed  of  America  is  that  the  impartial  governor  of  the 
universe  has  not  communicated  his  attributes  of  power,  wisdom, 
justice  and  mercy  to  kings  only,  and  denied  the  least  portion  of 
them  to  every  other  class  of  mankind,  but  that  the  only  divine 

(5) 


6  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

right  that  any  king  or  ruler  has  is  derived  from  the  people  them- 
selves. 

Indeed,  as  Winterbottom  says  in  his  "Yiew  of  the  United 
States,"  in  1796: 

"The  creed  of  an  American  colonist  was  short,  but  substantial. 
He  believed  that  God  made  all  mankind  originally  equal;  that  he 
endowed  them  with  the  rights  of  life,  property,  and  as  much  lib- 
erty as  was  consistent  with  the  rights  of  otbers;  that  he  had  be- 
stowed on  his  vast  family  of  the  human  race  the  earth  for  their 
support;  and  that  all  government  was  a  political  institution  between 
men  naturally  equal,  not  for  the  aggrandizement  of  one  or  a  few, 
but  for  the  general  happiness  of  the  whole  community." 

And  one,  long  after  this  time,  in  reviewing  the  tracks  of  the 
early  American  pioneers,  says : 

"Without  the  infection  of  wild  or  social  tbeories,  they  were 
animated  by  a  love  of  liberty  and  a  spirit  of  personal  independ- 
ence unknown  to  the  great  body  of  the  people  of  Europe,  while  at 
the  same  time  recognizing  the  law  which  united  the  individual  to 
the  family  and  to  the  society  in  which  he  is  appointed  to  live;  to 
the  municipalit}7  and  the  commonwealth  which  gave  him  protec- 
tion, and  to  a  great  nation  which  met  and  satisfied  the  natural  sen- 
timent of  country." 

In  this  country  sovereignty  is  in  the  people.  In  them  are  those 
inherent  powers  of  society,  which  no  climate,  no  time,  no  constitu- 
tion, no  contract,  can  ever  destroy  or  diminish.  In  them,  as  the 
supreme  power,  resides  the  right  of  command  or  the  right  to  insti- 
tute organic  law,  to  establish  public  authority  and  to  compel  obedi- 
ence to  it.  On  this  foundation  rose  the  American  superstructure 
of  government. 

James  Otis  once  said  that  there  could  be  no  prescription  old 
enough  to  supersede  the  law  of  nature  and  the  grant  of  Almighty 
God,  who  had  given  all  men  a  right  to  be  free;  that  nothing  but 
life  and  liberty  were  hereditable;  that  in  solving  practically  the 
grand,  political  problem  the  first  and  simple  principle  must  be 
equality  and  the  power  of  the  whole. 

In  its  practical  sense  sovereignty  means  nothing  more  nor  less 
than  the  power  to  originate  and  secure  the  performance  of  all  gov- 
ernmental acts. 

The  powers  of  sovereignty  in  the  people  of  the  United  States 


THIS    IS    AN    AGE    OF    WRITTEN    CONSTITUTIONS.  7 

are  parceled  out  between  the  Nation  and  the  State,  by  the  creators 
of  sovereignty  itself,  that  is  by  the  people. 

The  sixteenth  and  seventeenth  centuries  were  engaged  very  much 
in  discussing  the  prerogatives  of  kings,  and  the  contest  never  died 
out  till  the  last  heir  of  the  royal  house  of  the  Stuarts  had  passed 
away. 

In  Blackstone's  time  (1753)  prerogative  had  assumed  such  definite 
shape  as  to  be  capable  of  being  defined,  and  he  defines  it  as  follows: 
"By  the  word  prerogative  we  usually  understand  that  special  pre- 
eminence, which  the  king  had  over  and  above  all  other  persons,  and 
out  of  the  ordinary  course  of  the  common  law,  in  right  of  his  real 
dignity.  It  signifies  in  its  etymology  (from  prce  and  rogo)  something 
that  is  required  and  demanded  before  or  in  preference  to  others.  And 
hence  it  follows  that  it  must  be  in  its  nature  singular  and  eccen- 
trical; that  it  can  only  be  applied  to  those  rights  and  capacities  which 
the  king  enjoys  alone  in  contradistinction  to  others,  and  not  to  those 
which  he  enjoys  in  common  with  any  of  his  subjects;  for  if  once 
any  prerogative  of  the  crown  could  be  held  in  common  with  the 
subject  it  would  cease  to  be  prerogative  any  longer,  and,  therefore, 
Finch  lays  it  down  as  a  maxim,  that  the  prerogative  is,  that  law  on 
the  case  of  the  king,  which  is  law  in  no  case  of  the  subject." 

St.  George  Tucker  in  commenting  upon  this  in  his  edition  of 
B'r.ckstone  in  (1803)  says,  that  "  This  definition  of  prerogative  is 
enough  to  make  a  citizen  of  the  United  States  shudder  at  the  recol. 
lection  that  he  was  born  under  a  government  in  which  such 
doctrines  are  received  as  Catholic." 

It  was  one  of  the  wise  utterances  of  Locke,  that  "The freedom 
of  a  people  under  Government  is  dependent  upon  standing  rules 
to  live  by,  so  that  the  Government  may  become  a  government  of 
laws  and  not  of  men." 


CHAPTER  II. 

The  Advantages  of  Written  Constitutions. 

rTHHERE  has  always  been,  since  the  Government  of  the  United 
-L  States  was  established,  and  long  before,  a  controversy  between 
publicists  and  jurists  as  to  the  advantages  and  disadvantages  of 
written  and  unwritten  constitutions,  and  good  and  plausible  reasons 
may  be  assigned  why  unwritten  constitutions  should  be  preferred  to 
written  constitutions,  and  vice  versa.  This  opens  a  wide  Held  and  we 
shall  not  enter  it.  It  is  sufficient  for  us  to  express  our  decided  pref- 
erence for  a  written  constitution,  rather  than  an  inference  from 
disconnected  facts  or  customs,  which  may  become  the  playthings  of 
judicial  tribunals.  It  gives  a  strong  feeling  of  right  and  a  power- 
ful impulse  of  action  to  have  the  written  law  clearly  on  one's  side, 
and  though  power,  if  it  comes  to  the  last,  may  succeed,  yet  unless 
wielded  by  frenzy  will  pause  before  it  dares  to  pass  the  Rubicon, 
and  to  declare  revolution. 

A  written  constitution  has  the  peculiar  advantage  of  serving  as 
a  beacon  to  apprise  the  people  when  their  rights  and  liberties  are 
invaded  or  in  danger — and  Thomas  Jefferson  says :  u  Though 
written  constitutions  may  be  violated  in  moments  of  passion  or 
delusion,  yet  they  furnish  a  text  to  which  those  who  are  watchful 
may  again  rally  and  recall  the  people;  they  fix,  too,  for  the  people 
principles  of  their  political  creed." 

If  every  man  in  the  community  had  studied  political  economy 
and  the  science  of  government,  and  had  been  trained  to  understand 
his  political  rights  and  duties,  and  the  rights  and  duties  of  his 
fellow-man,  had  mastered  checks  and  balances,  and  would  constitute 
himself  a  watchman  to  see  that  there  were  no  violations  of  these 
functions  and  prerogatives,  and  that  no  public  functionary  usurped 
any  of  the  rights  of  the  people,  then  perhaps  an  unwritten  constitu- 
tion would  be  sufficient  for  all  purposes,  and  possibly  be  regarded 
the  best.  It  could,  by  common  consent,  be  made  to  yield  to  all  the 
exigencies,  wants  and  necessities  of  the  people,  as  they  arose  and 
were  required,  and  constitutional  conventions  would  be  unknown 
and  unnecessary.  But  for  a  community  whose  training  has  been 

(8) 


ADVANTAGES  OF  WRITTEN  CONSTITUTIONS.  9 

imperfect,  whose  opportunities  for  observation  have  been  limited, 
and  which  has  not  reached  a  high  degree  of  development,  then  a 
written  constitution  becomes  indispensable,  and  is  far  preferable. 

To  render  a  written  -constitution  safe,  however,  we  admit  that 
it  must  provide  efficient  machinery  for  its  own  amendment,  and  not 
be  too  unyielding — but  it  never  should  be  degraded  to  that  of  an 
ordinary  statute,  which  may  be  passed  to-day  and  repealed 
to-morrow. 

Thomas  Jefferson  once  expressed  an  opinion,  that  no  constitution 
ought  to  go  longer  than  twenty  years,  without  an  opportunity  being 
given  to  the  citizens  to  amend  it.  This  opinion  he  based  upon  the 
consideration  that  by  the  European  tables  of  mortality  it  appeared 
that  a  generation  of  men  lasted  on  the  average  about  that  number 
of  years,  and  that  every  succeeding  generation,  like  its  predecessor, 
had  "a  right  to  choose  for  itself  the  form  of  government  it 
believed  most  productive  of  its  own  happiness;  and  to  accom- 
modate to  the  circumstances  in  which  it  finds  itself,  and  that  which 
it  received  from  its  predecessors." 

But  in  expressing  this  opinion  he  did  not  hold  it  to  be  necessary 
that  a  constitutional  convention  should  be  called  together  every 
twenty  years.  And  we  judge  from  other  opinions  that  he  expressed 
that  it  would  meet  every  contingency,  if  amendments  could  from 
time  to  time  be  proposed,  and  voted  upon  by  the  people. 

it  does  not  follow  that  because  defects  have  been  discovered  here 
and  there  in  the  structure  of  an  organic  law,  or  that  some  of  its 
provisions  have  fallen  short  of  the  requirements  or  expectations  of 
the  people,  that  a  great  convention  should  be  called  together  to 
consider  the  same  and  rectify  it,  when  the  same  result  can  be 
brought  about  by  other  and  simpler  means. 

Is  our  constitution  so  unyielding  in  its  provisions  as  to  prevent 
amendments  as  speedily  as  they  are  required? 

And  what,  allow  me  to  ask,  is  the  grievance  that  can  not  now  be 
remedied  by  appropriate  legislation  on  the  part  of  the  General 
.Assembly? 

A  constitution  is  nothing  more  nor  less  than  a  limitation  of 
power  on  the  part  of  the  Legislature  and  in  the  absence  of  a  pro- 
hibitory clause,  actually  prohibiting  the  General  Assembly  of  the 
State  of  Illinois  from  legislating  upon  any  given  subject,  it  is  as 
omnipotent  as  that  of  the  British  Parliament. 


10  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

If  the  people  of  this  country  were  more  homogeneous  than  they 
are — if  they  were  influenced  by  the  same  traditions,  the  same 
general  customs  and  systems  of  law  and  structure  of  government, 
but  few  laws  would  probably  be  required,  and  we  would  not  per- 
haps be  always  striving  for  something  new  and  employing  our 
highest  courts  to  settle  doubtful  questions.  But  the  fact  is  the 
tendency  of  all  of  our  legislators  is  in  the  direction  of  innovation 
and  not  of  conservatism.  Here  men  pass  from  private  to  public 
employment,  with  but  little  knowledge  of  governmental  principles, 
and  with  no  knowledge  whatever  of  formulating  them,  and  the 
result  is  that  we  need  constitutional  limitations  to  restrain  the 
rashness  and  rawness  of  those  whom  we  select  to  act  as  Solons  and 
law  givers,  however  fiercely  they  may  beat  against  the  barriers 
that  hem  them  in. 

Indeed  it  is  the  leading  principle  of  our  American  system  of 
government  to  rest  its  permanency  upon  laws  rather  than  upon 
men,  and  as  a  general  rule,  if  the  laws  are  wise  and  right,  it  would 
make  but  a  very  little  difference  to  the  people  by  whom  they  are 
administered,  so  long  as  they  are  actually,  honestly  and  efficiently 
enforced. 

Thus  the  Constitution  and  the  laws  are  our  real  rulers;  the  men 
who  for  the  time  being  are  our  real  rulers,  the  men  who  for  the 
time  being  are  at  the  head  of  the  government,  are  the  servants  of 
the  laws,  and  are  simply  called  upon  to  see  that  they  are  properly 
respected  and  administered.  And  so  it  may  be  well  that  it  is  even 
better  to  have  as  rulers  honest  men  of  moderate  ability,  who  will 
strive  diligently  to  know  their  duty  and  to  do  it,  than  to  have  men 
of  higher  capacity,  whose  consciousness  of  their  great  abilities 
might  tempt  them,  in  the  interest  of  their  ambition,  to  leave  the 
old  and  safe  ways  and  experiment  in  new  and  dangerous  ones. 

There  are  but  very  few  men  in  this  country  but  what  discourse 
long  and  learnedly  upon  the  Constitution  and  constitutional  govern- 
ment. There  are  but  very  few  laws  ever  passed  either  by  our  National 
or  State  Legislatures  but  what  sooner  or  later  are  attacked  as  being 
unconstitutional,  and  it  is  nothing  uncommon  for  justices  of  the 
peace  and  those  of  a  little  higher  grade,  to  boldly  announce  that 
this  or  that  law  need  not  be  obeyed,  and  if  anybody  does  undertake 
to  obey  the  same  they  shall  be  indicted  and  punished  for  so  doing. 


CHAPTER  III. 

The   American   Constitutional  Form  of  Government  the 
Strongest  in  the  World. 


English  theory  of  government  is  that  its  constitution  is  pli- 
able,  is  always  yielding,  and  can  be  made  to  fit  any  emergency. 
Its  constitutional^  convention  they  say  is  always  in  session  unless 
adjourned  for  short  intervals,  or  prorogued  by  the  supreme  ruler  of 
the  empire,  whose  power  to  do  so  dates  back  to  the  remote  past. 
An  act  of  Parliament  when  passed  and  approved  becomes  a  part  of 
the  Constitution,  while  in  the  United  States  every  law  must  be  sub- 
ject to  a  still  higher  law,  to  wit,  an  organic  law,  which  no  power  can 
change  or  destroy  except  by  certain  methods  prescribed  by  the 
people  themselves.  It  is  true  that  English  jurists  and  English  states- 
men constantly  refer  to  their  constitution,  and  when  they  refer  to 
an  act  as  being  unconstitutional  they  mean  that  it  conflicts  with 
their  system  of  government  and  with  the  principles  embodied  in 
Magna  Charta,  the  Bill  of  Eights,  the  Petition  of  Rights,  the 
Habeas  Corpus  Act  or  Act  of  Settlement,  but  they  can  refer  to  no 
great  body  of  organic  law  or  established  system  of  government,  out- 
lined on  parchment  or  paper,  which  has  ever  been  formally  adopted 
and  promulgated  by  a  vote  of  the  people,  as  the  rule  and  guidance 
of  rulers  and  ruled,  and  they  glory  in  this  as  something  remarkable 
and  as  evidence  of  the  highest  wisdom.  Indeed  the  tories  of  Eng- 
land have  never  ceased  to  laugh  at  and  ridicule  our  constitution, 
but  we  think  that  the  time  will  come  when  it  will  be  taken  as  a 
model  for  every  government  in  Christendom,  and  every  government 
of  the  world  will  become  a  representative  government. 

Mr.  Gladstone,  the  great  English  liberal,  deserves  to  be  excepted 
from  most  of  the  English  statesmen  of  past  and  present  ages,  for 
he  says:  "I  think  the  Constitution  of  the  United  States  represents 
the  most  admirable  creation  that  has  ever  been  produced  by  one 
effort  of  human  intelligence."  If  these  are  his  sentiments  it  is  no 
wonder  that  he  is  in  favor  of  Home  Rule  in  Ireland,  and  every 
other  country  where  intelligent  human  beings  have  their  abode. 

When  the  constitution  of  this  country  was  drafted,  but  few 

(11) 


12  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

such  documents  had  ever  seen  the  light.  "  It  consisted  of  a  few 
sheets  of  paper,  which,  when  held  in'  the  hands  of  the  secretary  of 
the  convention  that  formed  it,  appeared  so  weak,  so  frail  and 
imperfect  that  it  seemed  as  if  it  would  have  but  very  little  force 
and  effect  in  binding  together  the  various  States  of  the  Union  or 
commanding  the  respect  of  the  people."  It  was  in  fact  a  mere 
skeleton,  and  the  powers  conferred  upon  the  new  government  were 
merely  enumerated  but  not  defined.  Their  definition  would  ulti- 
mately depend  upon  the  extent  to  which  it  would  be  prudent  or 
practicable  to  assert  and  employ  them.  Skill,  courage  and  energy 
would  make  good  a  broad  definition.  Timidity,  cowardice  or  dis- 
loyalty would  shrivel  them  into  insignificance.  To-day  our  govern- 
ment is,  in  my  judgment,  the  strongest  government  on  earth. 

We  begun  our  national  life  by  adopting  a  form  and  system  of 
government  by  vote  of  the  people,  and  so  did  most  of  the  States 
constituting  the  American  Union. 

It  is  true  that  a  number  of  the  States  were  granted  charter 
governments,  some  of  which  existed  until  long  after  the  Revolution 
—notably  Connecticut,  which  existed  under  the  charter  of  Charles, 
in  1662,  down  to  1818,  and  Rhode  Island,  from  1665  down  to  1842 
—but  the  people  established  their  own  governments  without  any 
authority  from  the  Crown,  and  afterward  procured  the  charters, 
which  conferred  the  same  authority  they  had  already  exercised. 

The  people  elected  their  governors  and  assemblies,  and  the  king 
reserved  no  power  to  veto  their  laws. 

The  traveler  to  Europe  as  he  visits  country  after  country,  and 
sees  in  many  of  them  the  sad  results  of  povert}7,  misery  and  mis- 
government,  is  moved  with  pity. 

France,  Spain,  Italy,  Austria,  Bohemia,  Poland  and  Turkey  are 
not  advancing  with  rapidity,  and  there  is  much  in  them  that  may 
be  regarded  as  benighted.  It  is  true  that  France,  Spain  and  Italy 
have  grappled  with  many  of  the  social  problems  of  the  age,  and 
have  taken  advantage  of  steam  and  electricity  and  many  of  the 
modern  appliances  with  which  we  are  so  familiar,  but  these  you 
meet  with  in  the  cities  and  along  their  crowded  thoroughfares; 
but  back  in  the  country  is  "  the  stillness  of  the  ages."  The  people 
stand  aghast  or  remain  stolid  and  indifferent.  They  are  a  hun- 
dred years  behind  the  age.  The  absence  of  the  school  house  is 
noticeable  everywhere,  while  the  night  of  the  middle  ages  seems  to 


AMERICAN    GOVERNMENT   THE   STRONGEST.  13 

have  settled  down  upon  the  rural  population  of  Bohemia,  Poland 
and  Austria,  and  that  of  Italy  and  France  is  destitute  of  all  enter- 
prise. The  Turkish  Empire  is  in  a  worse  condition  than  in  the  age 
of  Theodosius,  and  seems  to  be  incapable  of  regeneration. 

There  are  yet  large  portions  of  Europe  which  seem  to  have 
come  to  a  standstill,  and  to  have  arrived  at 

"  That  Ia8t  dread  mood 
Of  sated  lust  and  dull  decrepitude. 
No  law,  no  art,  no  faith,  no  hope,  no  God. 
When  round  the  freezing  founts  of  life  in  peevish  ring, 
Crouched  on  the  bare-worn  sod, 
Babbling  about  the  unreturning  spring, 
And  whining  for  dead  creeds  that  can  not  save, 
The  toothless  nations  shiver  to  their  grave." 

In  this  country  we  are  happy  to  say  things  are  different,  and 
efforts  at  reform  are  observable  everywhere.  Reforms  in  the  laws 
and  in  the  methods  of  domestic  government  are  matters  of  State 
concern,  and  under  our  form  of  government  the  powers  reserved  to 
the  people  in  these  respects  embrace  nearly  every  governmental 
power  essential  to  a  wise  and  liberal  government. 

.  The  Constitution  of  the  United  States,  in  fact,  enjoins  and  pro- 
motes, instead  of  restricting,  the  best  possible  domestic  govern- 
ment, republican  in  form,  which  the  people  can  devise  for  their 
respective  States. 

The  National  Legislature  has  its  limited  range  of  legislative 
powers;  the  State  Legislatures  have  the  rest. 

Forty-two  State  Legislatures  keep  watch  and  ward  against 
National  encroachment,  and  the  Supreme  Court  of  the  United  States 
towers  above  them  all,  directing,  restraining  and  nullifying  the 
action  of  either  National  or  State  Legislature  which  infringes  the 
other. 

The  States  of  this  Union  are  unfettered  in  their  powers  to  regu- 
late their  domestic  affairs,  except  in  a  very  few  particulars.  The 
form  of  government  which  we  adopt  must  be  republican  in  type, 
the  rights  of  the  citizens  must  be  respected,  and  in  the  language  of 
our  Bill  of  Rights  "  elections  must  be  free  and  equal,"  even  if  it 
requires  force  to  make  them  so. 

Our  interests  center  in  domestic  arid  local  affairs. 

"  We  are  interested  in  the  concerns  of  our  neighborhood,  town, 
county  and  State.  Aside  from  the  post-office  officials,  we  rarely 


14  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

come  in  contact  with  a  Federal  officer,  except  now  and  then  a  mili- 
tary or  naval  officer  on  leave  of  absence.  If  we  take  an  interest  in 
moral,  social,  educational  or  humanitarian  reforms  the  Nation  can 
not  lawfully  help  us;  our  field  is  the  State  or  under  its  favor." 


CHAPTER  IY. 

The  Ordinance  of  1787— The  Great  Organic  Law  of  the 

Northwest. 

IN  the  history  of  every  country  there  are  supreme  events  to 
which  may  be  traced  the  influence  that  shaped  the  destiny  of 
the  people  for  good  or  evil;  in  that  of  the  United  States  it  is  custom, 
ary  to  refer  to  the  Declaration  of  Independence  and  the  adoption 
of  the  Constitution  in  encomiastic  phrase,  as  exhibiting  wisdom  and 
genius  of  the  highest  order.  But  whatever  may  be  said  of  these 
may  be  applied  to  the  ordinance  of  1787,  with  equal  justice. 

Aye,  more;  the  spirit  of  the  ordinance  has  conferred  blessings 
in  addition  to  those  derived  from  the  Constitution  upon  the  citizens 
of  the  States  erected  under  its  provisions.  "Upon  the  surpassing 
excellence  of  the  ordinance,"  said  Judge  Timothy  Walker,  "  no 
language  of  panegyric  would  be  extravagant.  The  Romans  would 
have  imagined  some  divine  Egeria  for  its  author.  It  approaches 
as  nearly  to  absolute  perfection  as  anything  to  be  found  in  the 
legislation  of  mankind;  for,  after  the  experience  of  fifty  years,  it 
would  perhaps  be  impossible  to  alter  without  marring  it." 

In  short  it  is  one  of  those  matchless  specimens  of  sagacious  fore- 
cast, which  even  the  reckless  spirit  of  innovation  would  not  venture 
to  assail.  As  long  as  human  government  shall  endure,  the  influence 
for  good  of  this  remarkable  charter  shall  be  witnessed.  It  was  the 
one  really  great  act  of  legislation  by  Congress  under  the  old  Con- 
federation, and  it  was  the  happy  fortune  of  Arthur  St.  Clair  to  be 
the  president  of  the  body  at  that  time  and  have  the  opportunity  to 
give  the  measure  his  hearty  support.  1  St.  Clair  papers,  118. 

It  was  of  this  ordinance  that  the  great  Daniel  Webster,  in  his 
first  speech  upon  Foot's  Resolution  in  the  Senate  of  the  United 
States,  on  the  20th  of  January,  1829,  said  : 


THE   ORDINANCE   OF    1787.  15 

"  At  the  foundation  of  the  Constitution  of  thes6  new  North- 
western States,  lies  the  celebrated  ordinance  of  1787. 

"  We  are  accustomed,  sir,  to  praise  the  law  givers  of  antiquity; 
we  help  to  perpetuate  the  fame  of  Solon  and  Lycurgus,  but  1  doubt 
whether  one  single  law  of  any  lawyer,  ancient  or  modern,  has  pro- 
duced effects  of  more  distinct,  marked  and  lasting  character  than 
the  ordinance  of  1787.  That  instrument  was  drawn  by  Nathan 
Dane,  then  and  now  a  citizen  of  Massachusetts. 

"  It  was  adopted,  as  I  think  I  have  understood,  without  the 
slightest  alteration;  and  certainly  it  has  happened  to  few  men  to  be 
the  authors  of  a  political  measure  of  more  large  and  enduring  con- 
sequence. It  fixed  forever  the  character  of  the  population  in  the 
vast  regions  of  the  Ohio,  by  excluding  from  them  involuntary  ser- 
vitude. It  impressed  on  the  soil  itself,  while  it  was  yet  a  wil- 
derness, an  incapacity  to  sustain  any  other  than  freemen.  It  laid 
the  interdict  against  personal  servitude  in  original  compact,  not 
only  deeper  than  all  local  law,  but  deeper  also  than  all  local  consti- 
tutions. Under  the  circumstances  then  existing,  1  look  upon  the 
original  and  seasonable  provision  as  a  real  good  attained.  We  see 
its  consequences  at  this  moment,  and  we  shall  never  cease  to  see 
them,  perhaps,  while  the  Ohio  shall  flow.  It  was  a  great  and  salu- 
tary measure  of  prevention." 

In  these  late  years  many  publications  have  been  put  forth  to  show 
that  Nathan  Dane  was  not  the  author  of  the  ordinance  of  1787, 
and  the  claim  of  Dr.  Manasseh  Cutler,  of  Massachusetts,  has  been 
most  strenuously  urged.  We  do  not  deem  it  necessary  to  engage 
in  the  discussion  of  this  subject  at  this  time,  and  are  content  to 
leave  it  to  contemporary  history. 

But  there  is  one  thing  that  may  be  affirmed  of  the  ordinance  of 
1787,  and  that  is  it  was  the  first  great  Constitution  which  was  pre- 
pared in  advance  to  govern  and  control  a  vast  territory  that  was 
soon  to  develop  into  a  great  commonwealth. 

"  Save   New   England   alone,  there  is  no  section  of  the  United 

o  * 

States  embracing  several  States,  that  is  so  distinct  an  historical  unit, 
and  that  so  readily  yields  to  historical  treatment,  as  the  old 
Northwest. 

"It  is  the  part  of  the  great  West  first  discovered  and  colonized 
by  the  French.  It  was  the  occasion  of  the  final  struggle  for 
dominion  between  France  and  England  in  North  America.  It  was 


16  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

the  theatre  of  one  of  the  most  brilliant  and  far  reaching  military 
exploits  of  the  Revolution.  The  disposition  to  be  made  of  it  at  the 
close  of  the  Revolution,  is  the  most  important  territorial  question 
treated  in  the  history  of  American  diplomacy.  After  the  war  the 
Northwest  began  to  assume  a  constantly  increasing  importance  in 
the  national  history.  It  is  the  original  public  domain  and  part  of 
the  West  first  colonized  under  the  authority  of  the  national  gov- 
ernment. It  was  the  first  and  the  most  important  territory  ever 
organized  by  Congress.  It  is  the  only  part  of  the  United  States 
ever  under  a  secondary  constitution  like  the  ordinance  of  1787." 

Out  of  this  territory  five  great  States  have  been  carved,  and 
each  one  has  framed  a  constitution  for  itself,  and  there  is  probably 
no  region  of  the  world  where  constitution  making  has  been  indulged 
in  to  such  an  extent,  and  in  no  region  where  the  science  of 
government  is  better  understood. 


CHAPTER  Y. 

The  Efforts  to  Perpetuate  Slavery  Notwithstanding-  the 

Ordinance. 


whole  country  was,  from  tjie  earliest  period,  devoted  to 
-A-  freedom,  but  it  is  quite  astonishing  at  this  day,  to  know  how 
early  and  what  persistent  efforts  were  made  to  establish  and  per- 
petuate slavery  in  this  territory,  notwithstanding  it  was  expressly 
prohibited  by  the  ordinance  of  1787. 

The  French  residents  of  St.  Vincents  and  at  Kaskaskia  and 
Cahokia  had  boon  permitted  to  hold  slaves  by  the  king  of  France, 
and  this  permission  was  continued  under  the  government  of  Great 
Britain,  and  was  not  interfered  with  during  the  territorial  period. 
Some  slaves  were  removed  to  the  Louisiana  Territory,  but  others 
were  retained  as  indentured  servants.  Memorials  soon  began  to 
pour  into  Congress  asking  a  suspension  of  the  sixth  article. 

The  first  of  these,  signed  by  John  Edgar,  and  the  others,  were 
reported  on  May  12,  1796,  by  Joshua  Coit,  of  Connecticut,  to 
whom  they  had  been  referred,  adversely. 

In  December,  1802,  a  meeting  of  citizens  of  the  Indiana  Terri- 
tory, held  at  Vincennes  and  presided  over  by  "William  Henry  Har- 


EFFORTS  TO  PERPETUATE  SLAVERY.         17 

risen,  resolved  to  make  an  effort  to  secure  a  suspension  of  the  sixth 
article  of  the  ordinance. 

A  memorial  was  drawn  up,  and  in  February  following,  it  and  a 
letter  from  Mr.  Harrison  were  referred  to  a  special  committee  of 
which  John  Randolph,  of  Virginia,  was  chairman.  March  2,  1802, 
Mr.  Randolph  reported  the  following  resolution: 

Resolved^  That  it  is  inexpedient  to  suspend,  for  a  limited  time,  the 
operation  of  the  sixth  article  of  compact  between  the  original 
States  and  the  people  and  States  west  of  the  river  Ohio. 

This  resolution  was  accompanied  by  these  most  pertinent  and  sen- 
sible remarks:  "The  rapid  population  of  the  State  of  Ohio  suffi- 
ciently evince,  in  the  opinion  of  your  committee,  that  the  labor  of 
slaves  is  not  necessary  to  promote  the  growth  and  settlement  of 
colonies  in  that  region ;  that  this  labor,  demonstrably  the  dearest 
of  any,  can  only  be  employed  to  advantage  in  the  cultivation  of 
products  more  valuable  than  any  known  to  that  quarter  of  the 
United  States;  that  the  committee  deem  it  highly  dangerous  and 
inexpedient  to  impair  a  provision  wisely  calculated  to  promote  the 
happiness  and  prosperity  of  the  Northwestern  country,  and  to  give 
strength  and  security  to  that  extensive  frontier.  In  the  salutary 
operation  of  this  sagacious  and  benevolent  restraint  it  is  believed 
that  the  inhabitants  of  Indiana  will,  at  no  distant  day,  find  ample 
remuneration  for  a  temporary  privation  of  labor  and  of  emigra- 
tion." 

In  March,  1804,  C?esar  Rodney,  of  Delaware — afterward 
Attorney  General  of  the  United  States — reported  the  resolution  of 
a  special  committee  in  favor  of  the  suspension  of  the  inhibition 
for  ten  years. 

A  similar  report  was  made  in  1806  by  James  Garnet,  of  Vir- 
ginia; and  in  1807  Mr,  Parker,  delegate  from  Indiana,  reported 
favorably  on  a  memorial  of  William  Henry  Harrison  and  the  Ter- 
ritorial Legislature  praying  for  a  suspension  of  the  sixth  article  of 
the  ordinance.  But  subsequently  no  action  was  ever  taken  by  the 
House  on  these  favorable  reports.  Subsequently  General  Harrison 
and  his  Legislature  went  before  the  Senate,  and  a  special  committee, 
consisting  of  Mr.  Franklin,  of  North  Carolina,  Mr.  Kitchell,  of  New 
Jersey,  and  Mr.  Tiffin,  of  Ohio,  was  appointed. 

They  brought  in  an  adverse  report,  and  that  put  an  end  to  the 
efforts  to  destroy  the  anti-slavery  clause  of  the  ordinance. 
2 


18  CONSTITUTIONAL    HISTORY    OF   ILLINOIS. 

What  if  Ohio  had  formed  a  slave  State  constitution  in  1802. 
What  if  Illinois  had  actually  made  the  proposed  change  in  1824? 
What  would  Congress  and  the  Supreme  Court  possibly  have  done 
with  the  hard  questions  that  would  have  arisen  in  such  a  contin- 
gency? And  if  one  or  both  of  those  States  had  become  slave  States, 
what  then?  What  would  have  happened  if  slave  State  men  had 
been  in  a  majority  in  Ohio,  Indiana  and  Illinois,  no  one  can  do  more 
tiian  conjecture. 

Fortunately,  at  the  decisive  tests,  the  free  State  men  were  in 
the  majority.  Moreover,  the  ordinance  helped  to  create  the 
majority  as  well  as  to  protect  it  against  assault.  Governor 
Reynolds,  who  had  lived  in  Illinois  since  1800  and  who  was  a  slave 
State  man  in  1824,  although  he  afterwards  rejoiced  at  his  own 
defeat,  said  in  1855:  "This  act  of  Congress  was  the  great  sheet 
anchor  that  secured  the  States  of  Ohio,  Indiana  and  Illinois  from 
slavery.  I  never  had  any  doubt  but  slavery  would  now  exist  in 
Illinois  if  it  had  not  been  prevented  by  this  famous  ordinance." 


CHAPTER  VI. 
The  First  Court  Ever  Held  in  the  Northwest  Territory. 


county  of  Washington,  having  within  its  limits  about  half 
-A.  of  the  present  State  of  Ohio,  was  erected  on  the  26th  of  July, 
1788.  Officers  for  the  militia  were  appointed.  The  governor 
appointed  three  distinguished  gentlemen  justices  of  the  peace,  viz.: 
Rufus  Putnam,  Benjamin  Tapper  and  Winthrop  Sargent,  and  on 
the  30th  of  August,  established  a  Court  of  Quarter  Sessions,  of 
which  he  appointed  another  distinguished  citizen  and  soldier,  Return 
Jonathan  Meigs,  clerk.  Gen.  Putnam  was  also  made  judge  of  pro- 
bate, with  Colonel  Meigs  as  clerk. 

Laws  having  now  been  framed,  civil  officers  appointed  there- 
under, a  county  erected,  and  the  population  having  increased  on 
the  Ohio  to  one  hundred  and  thirty-two  souls,  there  remained 
to  complete  the  Government  only  the  formal  inauguration  of  the 
judiciary;  with  just  laws,  bench  and  forum,  the  liberties  of  the 
people  would  be  made  secure.  Tuesday  the  2d  day  of  September, 
1788,  was  the  day  set  apart  for  the  ceremony. 


FIRST    COURT    IN    NORTHWEST    TERRITORY.  19 

The  account  of  an  eye  witness  enables  us  to  enter  into  the  spirit 
of  the  occasion  and  to  feel,  after  an  interval  of  more  than  a  hundred 
years,  something  like  a  just  appreciation  of  the  greatness  of  the 
work  of  those  Revolutionary  heroes. 

It  is  the  duty,  as  it  should  be  the  pleasure,  of  all  who  enjoy  the 
blessings  conferred  by  the  most  liberal  Government,  and  equal  and 
beneficent  laws,  to  study  the  sources  of  these  and  the  character  of 
the  men  who  framed  and  established  them. 

They  builded  for  posterity.  The  scene  is  laid  at  Marietta  at  the 
mouth  of  the  Muskingum,  September  2,  1788.  On  that  memorable 
first  Tuesday  of  September,  1788,  the  citizens,  Governor  St.  Clair 
and  other  territorial  officers  and  military  from  Fort  Harmar,  being 
assembled  at  the  point,  a  procession  was  formed,  and  as  became  the 
occasion,  with  Colonel  Ebenezer  Sproat,  sheriff,  with  drawn  sword  and 
wand  of  office,  at  the  head,  marched  up  a  path  that  had  been  cut 
through  the  forest,  to  the  hall  in  the  northwest  block-house  of 
Campus  Martins,  where  the  whole  counter-marched,  and  the  judges, 
Putnam  and  Tapper  took  their  seats  on  the  high  bench.  Prayer  was 
fittingly  offered  by  our  friend,  Reverend  Mariasseh  Cutler,  who  was 
on  a  visit  to  the  new  colony,  after  which  the  commissions  of  the 
judges,  clerk  and  sheriff  were  read  and  the  opening  proclaimed  in 
deep  tones  by  Colonel  Sproat  in  these  words:  "  O,  yes!  a  court  is 
opened  for  the  administration  of  even-handed  justice,  to  the  poor 
and  the  rich,  to  the  guilty  and  the  innocent  without  respect  of  per- 
sons; none  to  be  punished  without  trial  by  their  peers,  and  then  in 
pursuance  of  laws  and  evidence  in  the  case." 

Paul  Fearing,  Esq.,  was  admitted  as  an  attorney  and  was  the 
first  lawyer  in  the  territory.  This  was  the  opening  of  the  Com- 
mon Pleas. 

The  Indian  chiefs  who  had  been  invited  by  Governor  St.  Clair  to 
attend  a  convention  were  curious  witnesses  of  this  impressive  scene. 

Ou  the  Tuesday  following  September  9th,  the  first  Court  of 
Quarter  Sessions  was  held  in  the  southeast  block-house,  occupied 
by  Colonel  E.  Battelle.  Ilildreth  describes  this  event  as  follows : 

"Colonel  Meigs,  clerk,  read  the  general  commission  issued  by 
the  governor,  after  which  Colonel  Sproat's  deep  bass  voice  com- 
manded the  solemn  attention  of  all. 

"General  Rufus  Putnam  and  General  Benjamin  Tupper  were 
all  the  justices  of  the  quorum,  and  Isaac  Pierce,  Thomas  Lord  and 


20  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

Colonel  Return  Jonathan  Meigs  assistant  justices;  Colonel  Meigs 
was  also  clerk.  Paul  Fearing  was  admitte'd  an  attorney  of  this 
court,  and  appointed  court  counselor  for  the  United  States  in  the 
county  of  Washington. 

"The  grand  jury  was  constituted  as  follows:  William  Stacy, 
foreman;  Nathaniel  Gushing,  Nathaniel  Goodale,  Charles  Knowles, 
Anselm  Tup  per,  Jonathan  Stone,  Oliver  Rice,  Ezra  Lunt,  John 
Matthews,  George  Ingersol,  Jonathan  Devol,  Samuel  Stebbins, 
Jethro  Putnam  and  Jabez  True.  The  charge  was  given  with  much 
dignity  and  propriety  by  Judge  Putnam.  At  one  o'clock  the 
grand  jury  retired,  and  the  court  adjourned  for  thirty  minutes.  At 
half  past  one  the  court  again  opened,  when  the  jurors  entered  and 
presented  a  written  address  to  the  court,  which,  after  being  read, 
was  ordered  to  be  filed.  Judge  Putnam  replied  to  the  address. 
There  being  no  suits  before  court,  it  was  adjourned  without  day." 
— St.  Clair  Papers. 


CHAPTER  VII. 

The  Organization  and  Admission  of  New  States. 

ON  Friday,  the  5th  of  October,  1787,  Congress  elected  General 
Arthur  St.  Clair  governor  of  the  Northwestern  Territory; 
James  M.  Varnum,  Samuel  Holden  Parsons  and  John  Armstrong, 
judges,  and  Winthrop  Sargent,  secretary.  John  Armstrong  having 
declined  the  office  of  judge,  John  C.  Cleves  Sy mines  was  appointed 
to  till  the  vacancy.  Judge  Varnum  died  January  10,  1789,  and 
Parsons,  1790.  These  vacancies  were  filled  by  the  appointment  of 
George  Turner  and  Gen.  Rufus  Putnam,  an  old  revolutionary 
soldier  who  had  taken  up  his  abode  at  Marietta,  at  the  mouth  of 
the  Muskingum.  Judge  Putnam  served  until  1796  when  he 
resigned  to  accept  the  office  of  surveyor-general.  Joseph  Gill- 
man,  of  Point  Harnar,  was  appointed  to  the  vacancy.  Judge 
Turner  removed  from  the  Territory  and  resigned  in  1796.  In  his 
place  Return  Jonathan  Meigs  was  appointed  in  February,  1798. 
There  were  no  further  changes  until  Ohio  was  erected  as  a  State. 
At  this  time  no  congressional  legislation  had  taken  place  to  carry 


ORGANIZATION    AND    ADMISSION    OF    NEW    STATES.         21 

into  effect  the  ordinance,  and  General  St.  Glair  improved  the  earliest 
opportunity  after  the  assembling  of  the  First  Congress  under  the 
Federal  Constitution  to  secure  the  necessary  action.  In  July,  1789, 
Mr.  Fitzsimmons,  of  Pennsylvania,  reported  in  the  House  of  Rep- 
resentatives a  bill  which  had  been  drafted  by  St.  Clair  for  the 
government  of  the  Northwestern  Territory,  which  passed  the 
House  and  Senate  without  opposition.  This  act  gave  the  sanction 
of  the  National  Legislature  to  all  of  the  important  provisions  of  the 
ordinance,  including  the  compact  for  the  inhibition  of  slavery,  which 
was  a  formal  assertion  of  the  right  of  the  National  Legislature  to 
regulate  that  institution  in  the  Territories. 

By  the  ordinance  of  1787,  the  governor  and  judges  which 
were  to  be  selected  were  empowered  to  adopt  and  publish  such 
"  laws  of  the  original  States "  as  they  deemed  fit  and  necessary, 
reporting  them  to  Congress  from  time  to  time,  which  laws  were  to 
continue  in  force  until  the  organization  of  the  General  Assembly, 
unless  disapproved  by  Congress.  This  method  of  legislation  was 
followed  in  constituting  all  the  Territories  carved  out  of  the  old 
Northwest,  except  Wisconsin  in  1836,  and  also  in  the  act  of  1790, 
for  the  territory  south  of  the  Ohio. 

This  Legislature  thus  constituted,  soon  found  that  their  author- 
ity was  altogether  too  limited,  and  without  any  regard  to  the  pro- 
visions of  the  ordinance  of  1787,  commenced  to  legislate  de  novo. 

The  Legislature  met  at  various  times  and  places — at  Marietta, 
Cincinnati  and  Vincennes,and  promulgated  laws;  but  among  the  very 
first  ones  in  June,  1795,  which  was  copied  from  an  old  Virginia  stat- 
ute of  the  colonial  period,  was  one  which  provided  that  "  the  com- 
mon law  of  England  and  all  general  statutes  in  aid  of  the  common 
law  prior  to  the  fourth  year  of  James  I,  should  be  in  force  in  the 
territory."  The  other  laws  passed  in  1795,  were  principally  derived 
from  the  statute  book  of  Pennsylvania. 

The  next  thing  in  order  was  to  constitute  counties  in  order  to 
provide  for  local  governments,  and  while  these  counties  were  riot 
as  large  as  those  that  Virginia  had  bounded  on  the  west  by  the 
South  Sea  or  even  by  the  Mississippi  river,  they  were  still  of  truly 
imperial  proportions.  Washington  county,  for  example,  reached 
from  the  Ohio  to  Lake  Erie  and  from  the  Pennsylvania  line  to  the 
Ctiyahoga-Tuscarawas  line  and  the  Scioto;  St.Clair  county  embraced 
all  Southern  Illinois.  But  Wayne  county,  organized  in  179B,  was 
the  most  extensive  of  all,  including  all  the  territory  within  the  fol- 


22  CONSTITUTIONAL    HISTOKY    OF   ILLINOIS. 

lowing  limits:  North  by  the  International  boundary  line,  east  by 
the  Cuyahoga,  the  portage  path  and  the  Tuscarawas;  south  by  a 
line  reaching  from  the  forks  above  Fort  Laurens;  west  and  north- 
west to  the  head  of  the  Miami  in  the  Ohio;  thence  northwest  to 
the  portage  between  the  Miami  of  the  lake  and  the  Wabash,  where 
Fort  Wayne  now  is,  and  thence  northwest  to  the  head  of  Lake 
Michigan;  and  west  by  a  line  running  north  to  the  International 
boundary,  including  all  the  lands  in  Wisconsin  draining  eastward  to 
the  same  lake. 

It  is  needless  to  say,  that  as  time  passed,  the  original  counties 
had  to  be  divided  into  smaller  ones,  and  that  the  General  Assem- 
bly, after  1799,  claimed  the  power  to  make  the  subdivision, 
but  the  governor  denied  the  Assembly's  claim,  and  vetoed  its 
bills  erecting  new  counties,  the  result  being  a  controversy  that  was 
finally  carried  to  Congress  and  decided  against  him.  Much  of  the 
bitterness  which  was  engendered  by  this  controversy,  is  said  to  have 
been  due  to  land  speculators,  who  were  anxious  to  organize  new 
counties  in  order  to  provide  for  office  holders,  and  also  for  the 
profits  that  might  be  derived  from  the  location  of  county  seats. 

THE    PAN    HANDLE. 

In  the  beginning  Virginia  hadl'been  organized  by  a  charter  of 
James  I,  in  1609,  with  movable  boundaries  on  the  west,  extending 
"  up  into  the  land  throughout  from  sea  to  sea,  west  and  northwest, 
so  that  as  settlers  took  possession  of  the  country  jurisdiction  was 
extended  over  them.  The  authorities  of  that  old  commonwealth 
claimed  the  earth.  In  1738  the  General  Assembly  created  Augusta 
county,  bounding  it  on  the  east  by  the  Blue  Ridge, and  on  the  west 
and  northwest  by  "  the  utmost  limits  of  Virginia,  whether  these 
limits  were  the  Pacific  Ocean  or  the  Mississippi  river.  They 
included  all  western  Pennsylvania.  It  took  years  to  settle  the 
disputes  which  this  claim  of  Virginia  gave  rise  to,  and  it  was  not 
until  1779  that  commissioners  appointed  by  the  respective  States 
met  at  Baltimore  and  agreed  upon  common  boundaries,  which  was 
"To  extend  Mason  and  Dixon's  line  due  west  live  degrees  of  longi- 
tude, to  be  computed  from  the  river  Delaware,  for  the  southern 
boundary  of  Pennsylvania,  and  that  a  meridian  line  drawn  from 
the  western  extremity  thereof  to  the  northern  limit  of  the  said 
State,  be  the  western  boundary  of  Pennsylvania  forever."  This  con- 
tract was  duly  ratified  by  the  Legislatures  of  the  two  States.  In 


THE  ADMISSION  OF   OHIO   AND    INDIANA.  23 

1785  Mason  and  Dixon's  line  was  extended  and  the  southwestern 
corner  of  Pennsylvania  established. 

The  "Pan  Handle"  is  what  was  left  of  Virginia  east  of  the 
Ohio  river  and  north  of  Mason  and  Dixon's  line  after  the  bound- 
ary was  run  from  this  point  to  Lake  Erie,  in  1786. 

When  the  State  of  Ohio  was  formed,  in  1802,  the  "  Pan  Han- 
dle" first  showed  its  beautiful  proportions  on  the  map  of  the  United 
States.  It  received  its  name  in  legislative  debate  from  Hon.  John 
McMillan,  delegate  from  Brooke  county,  to  match  the  Accomac 
projection,  which  he  dubbed  the  Spoon  Handle.* 


CHAPTER  VIII. 

The  Admission  of  Ohio  and  Indiana  into  the  Union. 

IN  May,  1800,  an  act  was  passed  by  the  Congress  of  the  United 
States,  dividing  the  Northwest  Territory  by  what  is  known  as 
the  Greenville  line,  from  the  Ohio  up  to  Fort  Recovery,  and  thence 
directly  north  through  Michigan.  All  eastward  of  this  boundary 
continued  to  be  the  Northwest  Territory. 

The  country  westward  was  established  as  the  Indiana  Territory, 
but  in  all  other  respects  was  governed  by  the  ordinance. 

Chillicothe  and  Vincennes  were  made  the  seats  of  government 
of  the  respective  districts  or  territories  until  otherwise  ordered  by 
their  Legislatures. 

On  April  30.  1S02,  an  act  was  passed  authorizing  a  convention 
of  delegates  to  be  elected  in  September,  and  a  convention  to  be 
held  November  1st,  at  Chillicothe,  to  determine  whether  to  estab- 
lish a  State  government,  and,  if  so,  to  proceed  at  once  to  form  and 
adopt  a  constitution,  provided  the  same  should  be  republican  in 
form  'and  conform  to  the  compact  of  the  ordinance  of  1787.  On 
the  29th  of  November  a  constitution  was  adopted  without  being 
submitted  to  a  vote  of  the  people,  the  enabling  act  not  requir- 
ing it. 

The  action  of  the  people  thus  taken  was  reported  to  Congress* 
together  with  the  constitution  which  had  been  adopted  by  the 
convention,  and  asking  for  its  approval. 


*Creg.  Hist,  of  Wash.  Co.,  Pa.;  Old  Northwest,  p.  109,  note. 


24  CONSTITUTIONAL    HISTOEY    OF    ILLINOIS. 

But  before  this  was  done  a  question  was  raised  whether  Mr. 
Fearing,  who,  it  will  be  recollected,  was  the  first  lawyer  ever 
admitted  to  the  bar  of  the  State  of  Ohio,  and  who  was  then  a  dele- 
gate in  Congress,  was  entitled  to  his  seat  as  a  delegate — which  was 
not  settled  until  January  31st.  Then  a  further  delay  took  place  in 
regard  to  certain  "  additional  donations"  which  the  convention  had 
proposed,  which  were  finally  consented  to  by  a  bill  which  was  not 
passed  until  March  3,  1803. 

The  Senate  also  had  taken  up  the  subject  by  a  bill  introduced 
January  5th,  to  "  provide  for  giving  effect  to  the  laws  of  the  United 
States,  within  the  State  of  Ohio."  A  communication  was  pre- 
sented from  "Worthington  on  the  7th,  as  agent,  inclosing  a  copy  of 
the  State  Constitution.  A  committee  was  directed  to  report  what 
legislative  measures,  if  any,  were  necessary  for  admitting  the  State 
of  Ohio  into  the  Union,  and  extending  the  laws  of  the  United 
States  over  the  State.  The  bill  reported  by  this  committee,  after 
reciting  that  a  constitution  and  State  government  had  been  formed 
by  the  people  pursuant  to  the  enabling  act,  passed  by  Congress,  and 
that  they  had  given  it  the  name  of  the  State  of  Ohio,  ordained  that 
it  be  established  as  a  judicial  district  of  the  United  States;  that  a 
district  court  be  organized,  and  hold  its  term  on  the  first  Monday 
in  June,  at  Chillicothe  ;  and  that  the  laws  of  the  United  States 
should  be  of  the  same  force  and  effect  in  the  said  State  as  else- 
where in  the  United  States.  This  bill  was  passed  by  Congress 
February  19th. 

Hufus  King,  in  his  work  on  Ohio,  in  discussing  this  matter, 
among  other  things  says  : 

"  Here,  then,  were  two  acts  of  Congress  recognizing  the  State  of 
Ohio,  but  no  State  yet  established  which  could  accept  or  act  upon 
them;  and  the  Constitution  expressly  recognizing  the  Territorial 
government  as  in  force  until  the  State  government  should  be  estab- 
lished. The  elections  were  held  January  llth. 

The  first  General  Assembly  met  at  Chillicothe  on  the  1st  of 
March.  Upon  organizing  aud  canvassing  the  votes  for  governor, 
Edward  Tiffin  was  declared  to  be  elected.  In  the  course  of  the 
session  Return  Jonathan  Meigs,  Jr.,  Samuel  Huntington  and  "Will- 
iam Sprigg  were  appointed  judges  of  the  Supreme  Court.  Thomas 
"Worthington  and  John  Smith  were  chosen  as  Senators  to  Congress, 
and  an  act  passed  for  holding  an  election  of  a  representative  to 
Congress,  on  June  llth.  Jeremiah  Morrow  was  elected.  But 


THE  ADMISSION  OP  ottio  Artr>  INDIANA.  25 

Congress  had  adjourned  on  the  3d  of  March,  and  the  Senators  and 
Representatives  of  Ohio  were  not  actually  admitted  until  the  next 
session. 

As  there  was  no  formal  act  of  admission  by  Congress,  much 
dispute  has  arisen  as  to  the  time  when  Ohio  was  admitted  as  one  of 
the  United  States,  the  various  hypotheses  ranging  all  along  from 
the  date  of  the  enabling  act,  April  30,  1802,  to  the  actual  seating 
of  her  Senators  and  Representatives  in  Congress,  October  17,  1803. 
It  is  quite  clear  that  the  enabling  act  did  not  form  the  State.  It  is 
also  certain  that  the  inchoate  State,  which  was  framed  by  the  con- 
vention, was  postponed,  by  its  express  submission,  to  the  Territorial 
government  until  the  State  government  could  be  formed  and  set  in 
operation.  The  earliest  day  at  which  this  can  be  said  to  have 
occurred  was  at  the  meeting  of  the  Legislature  on  the  first  day  of 
March. 

The  law-making  power  being  the  repository  and  paramount 
representative  of  the  power  and  sovereignty  of  the  State,  the  Terri- 
torial government  on  that  day  ceased,  and  Ohio  became  a  State  in 
the  Union." 

This  was  the  view  of  the  question  subsequently  adopted  by 
Congress.  In  March,  1804,  Judge  Meigs,  for  himself  and  his  asso- 
ciates of  the  Territorial  court,  presented  a  petition  stating  that  they 
had  continued  to  exercise  the  duties  until  April  15,  1803,  and  had 
applied  at  the  treasury  for  payment  of  their  salaries  accordingly. 

The  accounting  officers,  on  the  advice  of  the  attorney -general, 
had  refused  to  allow  it  beyond  November  29,  1802,  the  day  on 
which  the  State  Constitution  and  form  of  government  had  been 
adopted.  The  judges  had  thereupon  applied  to  the  Legislature  of 
Ohio,  and  they  likewise  refused,  holding  it  to  be  an  obligation  of 
the  United  States. 

After  reports  by  two  committees,  and  a  warm  debate  and  close 
division  in  committee  of  the  whole,  an  act  was  passed  February  21, 
1806,  directing  the  salaries  of  the  Territorial  officers  to  be  allowed 
and  paid  at  the  treasury  until  March  1,  1803. 

This,  therefore,  may  be  deemed  an  authoritative  decision  on 
the  subject. 

The  instrument  so  adopted,  it  would  be  respectful  to  pass  in 
silence.  It  was  framed  by  men  of  little  experience  in  matters  of 
State,  and  under  circumstances  unfavorable  to  much  forecast. 

With  such  a  model  of  simplicity  and  strength  before  them  as 


26  CONSTITUTIONAL    HISTORY    Of    ILLINOIS* 

the  National  Constitution,  which  had  just  been  formed,  the  wonder 
is  that  some  of  its  ideas  were  not  borrowed.  It  seems  to  have  been 
studiously  disregarded;  and  Ohio,  as  well  as  some  States  further 
westward,  which  her  emigrant  sons  with  filial  regard  induced  to 
adopt  her  example,  has  suffered  ever  since  from  a  weak  form  of 
government  made  up  in  haste,  and  apparently  in  mortal  dread  of 
Governor  St.  Clair.  He  declined  to  be  a  candidate  for  the  office  of 
governor,  but  unluckily  not  until  the  convention  had  adjourned. 

In  after  years  Ohio's  greatest  and  wittiest  governor  was  wont 
to  say,  that,  after  passing  the  first  week  of  his  administration  with 
nothing  to  do,  he  had  taken  an  inquest  of  the  office,  and  found  that 
reprieving  criminals  and  appointing  notaries  were  the  sole  "flowers 
of  the  prerogative." 

Briefly  stated,  it  was  a  government  which  had  no  executive,  a 
half-starved,  short-lived  judiciary,  and  a  lop-sided  Legislature. 

This  department,  overloaded  with  the  appointing  power  which 
had  been  taken  away  from  the  executive,  became  so  much  depraved 
in  the  traffic  of  offices,  that,  in  an  assembly  where  there  was  a  tie 
both  between  the  Democrats  and  the  Whigs,  two  "Free  Soilers" 
held  the  balance  of  power,  and  were  permitted  to  choose  a  United 
States  Senator,  in  consideration  of  giving  their  votes,  for  every 
other  appointment,  to  the  party  which  aided  them  in  this  supreme 
exploit  of  jobbery.  A  new  constitution  put  an  end  to  this,  but  the 
shadow  of  St.  Clair  still  predominates. 

One  occurrence  in  the  'convention  deserves  notice.  In  terms 
for  the  qualification  of  voters,  as  at  first  adopted,  the  right  of  suf- 
frage had  been  conferred  upon  negroes  and  mulattoes.  But  on  a 
revision,  a  motion  to  strike  this  out  was  carried  only  by  the  casting 
vote  of  the  President  —  a  strange  prelude  to  the  rigorous  "Black 
Laws"  soon  afterward  adopted  by  the  Legislature. 

The  admission  of  Indiana  was  effected  without  opposition  and 
without  causing  a  single  ripple  on  the  surface  of  public  affairs. 

In  response  to  a  petition  from  the  Territorial  Legislature,  Con- 
gress passed  an  enabling  act  April  19,  1816,  defining  the  bounda- 
ries and  providing  for  the  election  of  delegates  and  the  calling  of 
a  convention  to  frame  a  constitution. 

The  convention  convened  at  Cory  don  June  10-29,  1816,  and 
framed  a  constitution,  and  the  State  was  admitted  into  the  Union 
December  11,  1816. 


CHAPTEK  IX. 

The  Admission  of  Michigan  and  Wisconsin  into  the  Union. 

HUE  history  of  the  admission  of  Michigan  into  the  Union,  forms, 


T 


perhaps,  quite  as  interesting  a  chapter  as  any  in  our  annals. 
'No  other  part  of  the  United  States  has  seen  so  many  changes  of 
national  and  local  jurisdiction.  It  has  belonged  to  France,  to  Eng- 
land and  to  the  United  States. 

From  1796  to  1803  it  was  part  of  the  Northwest  Territory,  from 
1803  to  1805  a  part  of  Indiana,  and  then  an  independent  territory 
until  its  admission  into  the  Union,  in  1837.  In  1832  the  people,  at 
a  popular  election,  cast  a  large  majority  vote  in  favor  of  entering  into 
a  State  government.  Proceeding  upon  the  theory  of  the  Federalists 
in  1802,  that  no  enabling  act  was  necessary,  the  Territorial  Legis- 
lature, January  20,  1835,  passed  an  act  calling  a  convention  to 
frame  a  constitution,  and  designating  April  4th  the  day  for  the  elec- 
tion of  delegates.  The  election  was  held;  the  convention  assembled 
at  Detroit,  May  llth  to  June  29th,  and  a  constitution  was  drawn  up 
and  ratified  November  2d.  President  Jackson  laid  it  before  Con- 
gress in  a  special  message.  A  boundary  contest  immediately 
sprang  up  between  Ohio  and  Indiana,  which  led  to  "war,"  and  the 
marshaling  of  political  and  military  forces,  but  no  blood  was  shed. 

A  great  presidential  contest  was  imminent,  and  Andrew  Jackson 
was  interested  in  the  candidacy  of  Martin  Van  Buren.  The  State 
of  Arkansas  also  stood  at  the  door  knocking  for  admittance,  and  the 
administration  party  was  anxious  that  both  should  be  admitted  in 
time  to  vote,  for  it  was  expected  that  both  would  be  democratic;  but 
Michigan  was  a  free  State  and  Arkansas  was  a  slave  State,  and 
although  it  was  understood  that  in  this  scale,  one  would  balance  the 
other,  there  was  yet  an  anxiety  on  either  side  lest  the  other  should 
get  the  advantage. 

Acts  for  the  admission  of  the  two  States  were  finally  approved 
June  15,  1836 ;  the  one  admitting  Arkansas  unconditionally,  the 
other  Michigan  with  certain  conditions  relating  to  its  boundaries, 
which  were  required  to  be  assented  to  by  a  delegated  convention 
called  to  sit  at  Ann  Arbor  September  4th.  The  convention  rejected 

(27) 


28  CONSTITUTIONAL   HISTORY    OF    ILLINOIS. 

the  propositions  and  conditions.  This  caused  a  great  disappoint- 
ment among  the  politicians,  and  the  governor  was  importuned  to 
call  another  convention  to  consider  the  matter,  but  he  replied  that 
there  was  no  time  to  call  another,  and  he  had  no  authority  to  do  so. 
The  enterprising  citizens  of  that  commonwealth  were,  however, 
equal  to  the  emergency  and  accordingly  five  citizens,  "  in  the  name 
of  the  people  in  their  primary  capacity,"  called  a  convention  to 
meet  at  Ann  Arbor  December  14th,  which  it  was  afterward  ascer- 
tained to  be  in  accordance  with  a  democratic  scheme  formed  at 
Washington.  The  convention  was  dubbed  the  "  frost-bitten  con- 
vention," assumed  "  sovereign  powers,"  assented  to  all  the  terms 
and  conditions  provided  in  the  act  of  Congress,  and  adjourned. 
They  reported  their  action  to  the  House,  and,  to  the  astonishment 
of  the  people  of  Michigan  and  the  civilized  world,  Congress 
accepted  the  action  of  this  convention  as  amply  sufficient  and  as 
meeting  the  requirements  of  the  act  of  admission,  and  then  and 
there  admitted  Michigan  into  the  Union,  but  the  electoral  vote  was 
not  counted. 

The  admission  of  Wisconsin  into  the  Union  was  not  accompa- 
nied by  such  "signs  and  portents"  as  that  of  Michigan,  and  was 
not  effected  until  two  constitutional  conventions  had  been  held  and 
two  constitutions  framed,  one  of  which,  on  being  submitted  to  the 
people,  was  rejected,  and  the  other  was  not  adopted  until  after  the 
lapse  of  several  years  after  the  first  one  was  rejected;  and  it  was 
not  until  May  29,  1848,  that  the  State  became  a  member  of  the 
Union. 

A  controversy  first  arose  between  Michigan  and  Wisconsin  as 
to  what  was  to  be  her  future  boundaries,  and  finally  led  to  a  divis- 
ion of  the  great  peninsula  which  commences  in  the  region  of  Green 
Bay  and  extends  to  the  shores  of  Lake  Superior.  Then  the  people 
demanded  a  restoration  of  that  portion  of  Illinois  which  includes 
many  of  the  northern  counties  of  the  State,  and,  strange  to  say, 
were  aided  and  assisted  in  this  claim  by  large  numbers  of  the  inhab- 
itants of  those  counties,  who  sympathized  with  the  people  of  Wis- 
consin. Public  meetings  were  held  in  various  Illinois  towns,  and 
adopted  resolutions  in  favor  of  the  Wisconsin  claim,  and  on  the  6th 
of  July,  1840,  a  convention  was  held  at  Rockford,  which  declared 
that  the  fourteen  northern  counties  belonged  to  Wisconsin,  and 
recommended  the  people  to  elect  delegates  to  a  convention,  to  be 
held  at  Madison  in  November,  for  the  purpose  of  adopting  such 


ILLINOIS  AND  VIRGINIA,  29 

lawful  and  constitutional  measures  as  may  seem  to  be  necessary  and 
proper  for  the  early  adjustment  of  the  southern  boundary. 

In  1842  the  territorial  governor  sent  an  official  communication 
to  the  governor  of  Illinois,  informing  him  that  the  Illinois  juris- 
diction over  the  frontier  counties  was  accidental  and  temporary. 

Great  excitement  ensued,  and  the  people  were  kept  in  a  contin- 
ual agitation  over  the  boundary  question,  State  banking  and  various 
other  matters,  and,  as  before  stated,  it  was  not  until  May  29,  1848, 
that  Wisconsin  was  admitted  into  the  Union. 


CHAPTEK  X. 

Illinois  and  Virginia— George  Rogers  Clark  and  the  Back- 
woodsmen. 

THE  individual  enterprise  of  Col.  George  Rogers  Clark  to  lead 
an  expedition  into  the  Illinois  country  and  drive  out  the 
English,  French  and  Indians  that  had  their  headquarters  at  Kas- 
kaskia  and  neighboring  villages,  or  make  them  acknowledge 
allegiance  to  the  Americans,  was  one  worthy  of  the  daring  and 
genius  of  that  intrepid  and  experienced  frontiersman. 

The  story  has  been  too  often  told  to  bear  repetition.  Its  great 
importance  arises  from  the  fact  that,  starting  as  he  did  from 
Virginia,  and  under  the  auspices  of  Virginia,  his  conquest  has  been 
claimed  as  belonging  exclusively  "to  the  Nation  of  Virginia,"  as 
Thomas  Jefferson  characterized  that  great  commonwealth. 

Roosevelt,  in  his  "  Winning  of  the  West,"  says :  "  It  is  idle  to 
talk  of  that  conquest  as  being  purely  a  Virginia  affair.  It  was  con- 
quered by  Clark,  a  Virginian,  with  some  scant  help  from  Virginia, 
but  it  was  retained  only  owing  to  the  power  of  the  United  States, 
and  the  patriotism  of  such  northern  statesmen  as  Jay,  Adams  and 
Franklin,  the  negotiators  of  the  final  treaty.  Had  Virginia  alone 
been  in  interest,  Great  Britain  would  not  have  even  paid  her  claims 
the  compliment  of  listening  to  them.  Virginia's  share  in  the 
history  of  the  Nation,  has  ever  been  gallant  and  leading;  but  the 
Revolutionary  war  was  emphatically  fought  by  Americans  for 
America;  no  part  could  have  been  won  without  the  help  of  the 


30  CONSTITUTIONAL   HISTORY    OF    ILLINOIS. 

whole,  and  every  victory  was  thus  a  victory  for  all,  in  which  all 
alike  can  take  pride." 

The  fate  of  Clark  was  melancholy,  and  like  that  of  General 
Arthur  St.  Clair,  closed  in  poverty  and  gloom.  He  was  ultimately 
made  a  brigadier-general  in  the  Virginia  militia,  and  to  the 
harassed  settlers  in  Kentucky,  his  mere  name  was  a  tower  of 
strength. 

Alone  and  with  the  very  slenderest  means,  he  had  conquered  and 
held  a  vast  and  beautiful  region,  which,  but  for  him,  would  have 
formed  part  of  a  foreign  and  hostile  empire;  he  had  clothed  and  paid 
his  soldiers  with  the  spoils  of  his  enemies;  he  had  spent  his  own 
fortune  as  carelessly  as  he  had  risked  his  life,  and  the  only  reward 
that  he  was  destined  for  many  years  to  receive,  was  the  sword 
voted  him  by  the  Legislature. 

Clark  felt  that  he  was  entitled  to  some  substantial  reward  rather 
than  an  empty  bauble  for  his  services,  and  the  tradition  is  that  when 
the  Virginia  commissioners  offered  Clark  the  sword,  the  grim  old 
fighter,  smarting  under  the  sense  of  his  wrongs,  threw  it  indignantly 
from  him,  telling  the  envoys  that  he  demanded  from  Virginia  his 
just  rights  and  promised  reward  of  his  services,  not  an  empty  com- 
pliment. The  inhabitants  of  Illinois  paid  to  his  shade  the  post- 
humous honor  of  naming  a  county  after  him,  and  the  city  of 
Chicago  an  important  street,  over  which  uncounted  thousands  daily 
and  hourly  pass  and  repass,  who  never  knew  of  his  existence,  and 
never  heard  of  his  exploits. 

"  The  country  beyond  the  Alleghanies  was  first  won  and  settled 
by  the  backwoodsmen  themselves,  acting  under  their  own  leaders, 
obeying  their  own  desires  and  following  their  own  methods.  They 
were  a  marked  and  peculiar  people.  The  good  and  evil  traits  in 
their  character  were  such  as  naturally  belonged  to  a  strong,  harsh 
and  homely  race,  which,  with  all  its  shortcomings,  was  nevertheless 
bringing  a  tremenduous  work  to  a  triumphant  conclusion.  The 
backwoodsmen  were,  above  all  things,  characteristically  American; 
and  it  is  fitting  that  the  two  greatest  and  most  typical  of  all 
Americans,  should  have  been  respectively  a  sharer  and  an  outcome  of 
their  work.  Washington  himself  passed  the  most  important  years  of 
his  youth  heading  the  westward  movement  of  his  people;  clad  in 
the  traditional  dress  of  the  backwoodsman,  in  tasseled  hunting 
shirt  and  fringed  leggings,  he  led  them  to  battle  against  the  French 
and  Indians,  and  helped  to  clear  the  way  for  the  American  advance. 


ILLINOIS  AND  VIRGINIA.  Si 

The  only  other  man  who,  in  the  American  roll  of  honor,  stands  by 
the  side  of  Washington,  was  born  when  the  distinctive  work  of 
the  pioneers  had  ended;  and  yet  he  was  bone  of  their  bone  and 
flesh  of  their  flesh;  for  from  the  loins  of  this  gaunt  frontier  folk 
sprang  mighty  Abraham  Lincoln."  The  claims  of  Virginia  to  the 
Northwestern  Territory  have,  first  and  last,  been  the  subject  of 
very  great  discussion,  and  were,  at  the  time  when  she  made  her 
deed  of  cession  to  the  United  States.  She  claimed  in  the  first 
place,  all  of  the  sovereign  powers  of  a  Nation,  and  laid  great  stress 
upon  her  conquest  of  the  territory  by  Clark,  which  was  followed 
by  many  public  acts  of  the  Colonial  Government,  asserting  and 
exercising  dominion  over  the  same. 

THE  NATION  OF  VIRGINIA. 

Thomas  Jefferson  entertained  a  most  exalted  opinion  of  the 
power  of  the  State  of  Virginia,  and  sometimes  spoke  of  that  great 
Commonwealth  as  the  Nation  of  Virginia.  As  an  example,  in 
1799,  the  question  was  extensively  discussed  whether  the  Supreme 
Court  of  the  United  States  possessed  a  general  common  law  juris- 
diction, and  in  a  letter  addressed  to  Edmund  Randolph  on  the  18th 
of  August,  of  that  year,  among  other  things  said:  "Before  the 
Revolution,  the  Nation  of  Virginia  had,  by  the  organs  they  then 
thought  proper  to  constitute,  established  a  system  of  laws,  which 
they  divided  into  three  denominations,  of: 

I.  Common  Law. 

II.  Chancery;  or  if  you   please  into  two   only:  1.  Common 
law.     2.  Chancery. 

When  by  the  Declaration  of  Independence  they  chose  to  abolish 
their  former  organs  of  declaring  their  will,  the  acts  of  will  already 
formally  and  constitutionally  declared,  remained  untouched.  For 
the  Nation  was  not  dissolved,  was  not  annihilated;  its  will,  therefore, 
remained  in  full  vigor;  and  on  establishing  the  new  organs, 
first  of  a  convention  and  afterward  a  more  complicated  Legislature, 
the  old  acts  of  National  will  continued  in  force,  until  the  Nation 
should,  by  its  new  organs,  declare  its  will  changed. 

The  common  law,  therefore,  which  was  not  in  force  when  we 
landed  here,  nor  till  we  had  formed  ourselves  into  a  Nation  and  had 
manifested  by  the  organs  we  constituted  that  the  common  law  was 
to  be  our  law,  because  the  Nation  continued  in  being,  and  because, 
though  it  changed  the  organs  for  the  future  declarations  of  its  will, 


32  CONSTITUTIONAL  JiisToRY  or  ILLINOIS. 

yet  it  did  not  change  its  former  declarations  that  the  common  law 
was  Us  law.  Apply  these  principles  to  the  present  case.  Before 
the  Revolution  there  existed  no  such  Nation  as  the  United  States; 
they  then  first  associated  as  a  Nation,  but  for  special  purposes  only. 
They  had  all  their  laws  to  make  as  Virginia  had  on  her  first 
establishment  as  a  Nation.  But  the;  did  not,  as  Virginia  had  done, 
proceed  to  adopt  a  whole  system  of  laws  ready  made  to  their  hand. 

That  Virginia  did,  as  the  settlers  passed  beyond  the  Alleghanies, 
exercise  acts  of  sovereignty  over  the  regions  which  were,  from 
time  to  time,  reported  to  the  authorities  as  existing,  is  not  denied, 
for  we  find  that  the  county  of  Orange  was  created  in  173i,  Augusta 
in  1738,  and  Botetourt  in  1769,  in  which  act  it  is  naively  stated 
that  it  is  "  bounded  west  by  the  utmost  limits  of  Virginia." 

Other  counties  erected  before  the  Revolution,  extended  to  the 
Ohio,  and  embraced  Kentucky. 

Chief  Justice  Chase,  in  reviewing  the  controversy  which  arose 
in  regard  to  Virginia's  claim  to  the  whole  Northwestern  Territory 
and  of  the  various  other  claims  to  western  lands  by  eastern  States 
among  other  things  says  :  "Of  these  various  claims,  that  of  the  United 
States  seems  to  have  been  the  most  natural  and  just.  The  charter 
of  Virginia  had  been  vacated  by  a  judicial  proceeding;  the  company 
to  whom  it  was  granted  had  been  dissolved,  the  grant  itself  had 
been  resumed  by  the  Crown,  and  large  tracts  of  the  country 
included  in  its  original  limits,  had  been  patented  to  various  individ- 
uals and  associations  without  remonstrance  on  the  part  of  the 
colony  of  Virginia." 

The  expenses  incurred  and  the  efforts  made  by  Virginia  in  the 
reduction  of  the  British  posts  and  in  the  defense  and  protection  of 
the  frontier,  created  a  just  claim  upon  the  treasury  of  the  Union, 
but  could  not,  of  themselves,  confer  a  valid  title  to  the  western 
lands.  The  western  boundary  of  Connecticut  had  been  so  clearly 
defined  in  her  agreement  with  New  York  that  her  claims  to  terri- 
tory beyond  that  line  could  not  be  entitled  to  much  consideration; 
the  pretensions  of  New  York  were  liable  to  easy  refutation  upon 
an  appeal  to  western  geography  and  an  investigation  into  the  real 
extent  of  the  territory  of  the  six  nations,  and  the  claim  of  Massa- 
chusetts rested  upon  a  charter  granted  at  a  period  when  the  terri- 
tory now  claimed  under  it  was  actually  possessed  and  occupied  by 
France.  In  opposition  to  these  various  pretensions,  the  Congress, 
as  the  common  head  of  the  United  States,  maintained  its  title  to 


ILLINOIS   COUNTY.  33 

the  western  lands  upon  the  solid  ground  that  a  vacant  territory 
wrested  from  the  common  enemy  by  the  united  arms  and  at  the 
joint  expense  of  all  the  States,  ought  of  right  to  belong  to  Congress 
in  trust  for  the  common  use  and  benefit  of  the  whole  Union. 

In  1776  the  Virginia  Legislature  erected  the  county  of  Ken- 
tucky, which  included  about  everything  southwest  of  the  Ohio. 

On  the  4th  of  July,  1778,  George  Rogers  Clark  captured 
Kaskaskia,  which  had  been  for  nearly  a  hundred  years  the  capital 
of  what  was  called  the  Illinois  country,  and  in  October,  1778,  the 
Legislature  of  Virginia  declared,  "  All  citizens  of  the  Common- 
wealth of  Virginia,  who  are  actually  settlers  there,  or  who  shall 
hereafter  be  settled  on  the  west  side  of  the  Ohio,  shall  be  included 
in  the  District  of  Kentucky,  which  shall  be  called  Illinois  County." 
A  lieutenant  commandant  was  appointed  by  Governor  Patrick 
Henry  to  govern  the  county,  with  full  instructions  for  carrying 
on  the  government. 

The  French  settlements  remained  under  Virginia  jurisdiction 
until  March,  1784 


CHAPTER  XL 

Illinois  County. 

ILLINOIS  was  once  the  frontier  county  of  Virginia;   and  Ban- 
croft says  that  "  Virginia  was  the  first  State  in  the  world  com- 
posed of  separate  boroughs,  diffused  over  an  extensive  surface,  where 
representation  was  organized  on  the  principle  of  universal  suffrage." 
As  the  State  of  Illinois  has  never,  at  any  time,  printed  in  any 
statute  or  volume  of  session  laws,  either  public  or  private,  the  act 
of  Virginia  organizing  what  is  now  known  as  the  State  of  Illinois 
into  the  County  of  Illinois,  we  have  here  printed  it  in  full,  so  that 
it  can  be  seen  and  read  of  all  men : 

THE    COUNTY    OF    ILLINOIS. 

AN  ACT  for  establishing  the  County  of  Illinois,  and  for  the  more  effectual  protec- 
tion and  defense  thereof. 

WHEREAS,  By  a  successful  expedition  carried  on  by  the  Virginia 
militia,  on  the  western  side  of  the  Ohio  river,  several  of  the  British 
3 


34  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

posts  within  the  territory  of  this  commonwealth,  in  the  country 
adjacent  to  the  river  Mississippi,  have  been  reduced,  and  the  inhab- 
itants have  acknowledged  themselves  citizens  thereof,  and  taken 
the  oath  of  fidelity  to  the  same;  and  the  good  faith  and  safety  of 
the  commonwealth  require  that  the  said  citizens  should  be  supported 
arid  protected  by  speedy  and  effectual  reinforcements,  which  will 
be  the  best  means  of  preventing  the  inroads  and  depredations  of 
the  Indians  upon  the  inhabitants  to  the  westward  of  the  Allegheny 
Mountains;  and  whereas,  from  their  remote  situation,  it  may  at 
this  time  be  difficult,  if  not  impracticable,  to  govern  them  by  the 
present  laws  of  this  commonwealth,  until  proper  information,  by 
intercourse  with  their  fellow-citizens  on  the  east  side  of  the  Ohio, 
shall  have  familiarized  them  to  the  same,  and  it  is  therefore  expe- 
dient that  some  temporary  form  of  government,  adapted  to  their 
circumstances,  should  in  the  meantime  be  established:— 

Be  it  enacted  by  the  General  Assembly,  That  all  the  citizens  of 
this  commonwealth  who  are  already  settled,  or  shall  hereafter 
settle,  on  the  western  side  of  the  Ohio  aforesaid,  shall  be  included 
in  a  distinct  county,  which  shall  be  called  Illinois  county;  and  that 
the  governor  of  this  commonwealth,  with  the  advice  of  the  council, 
may  appoint  a  county  lieutenant  or  commandant  in  chief  in  that 
county,  during  pleasure,  who  shall  appoint  and  commission  so  many 
deputy  commandants,  militia  officers  and  commissaries,  as  he  shall 
think  proper  in  the  different  districts,  during  pleasure,  all  of  whom, 
before  they  enter  into  office,  shall  take  the  oath  of  fidelity  to  this 
commonwealth  and  the  oath  of  office,  according  to  the  form  of  their 
own  religion,  which  the  inhabitants  shall  fully,  and  to  all  intents  and 
purposes  enjoy,  together  with  all  their  civil  rights  and  property. 

And  all  civil  officers  to  which  the  said  inhabitants  have  been 
accustomed,  necessary  for  the  preservation  of  peace  and  the  adminis- 
tration of  justice,  shall  be  chosen  by  a  majority  of  the  citizens  in 
their  respective  districts,  to  be  convened  for  that  purpose  by  the 
county  lieutenant  or  commandant,  or  his  deputy,  and  shall  be  com- 
missioned by  the  said  county  lieutenant  or  commandant  in  chief, 
and  be  paid  for  their  services  in  the  same  manner  as  such  expenses 
have  been  heretofore  borne,  levied  and  paid  in  that  county;  which 
said  civil  officers,  after  taking  the  oaths  as  before  prescribed,  shall 
exercise  their  several  jurisdictions,  and  conduct  themselves  agree- 
able to  the  laws  which  the  present  settlers  are  now  accustomed  to. 

And  on  any  criminal  prosecution,  where  the  offender  shall  be 


ILLINOIS  COUNTY.  35 

adjudged  guilty,  it  shall  and  may  be  lawful  for  the  county  lieuten- 
ant or  commandant  in  chief  to  pardon  his  or  her  offense,  except  in 
cases  of  murder  or  treason;  and  in  such  cases,  he  may  respite  exe- 
cution from  time  to  time  until  the  sense  of  the  governor  in  the 
first  instance,  and  of  the  General  Assembly  in  the  case  of  treason,  is 
obtained.  But  where  any  officers,  directed  to  be  appointed  by  this 
act,  are  such  as  the  inhabitants  have  been  unused  to,  it  shall  and 
may  be  lawful  for  the  governor,  with  the  advice  of  the  council,  to 
draw  a  warrant  or  warrants  on  the  treasury  of  this  commonwealth 
for  the  payment  of  the  salaries  of  such  officers,  so  as  the  sum  or 
sums  drawn  for  do  not  exceed  the  sum  of  five  hundred  pounds, 
anything  herein  to  the  contrary  notwithstanding. 

And  for  the  protection  and  defense  of  the  said  county  and  its 
inhabitants, 

Be  it  enacted,  That  it  shall  and  may  be*  lawful  for  the  gov- 
ernor, with  the  advice  of  the  council,  forthwith  to  order,  raise, 
levy,  either  by  voluntary  enlistments  or  detachments  from  the 
militia,  five  hundred  men,  with  proper  officers,  to  march  immedi- 
ately into  the  said  county  of  Illinois,  to  garrison  such  forts  or 
stations  already  taken,  or  which  it  may  be  proper  to  take  there  or 
elsewhere,  for  protecting  the  said  county,  and  for  keeping  up  our 
communication  with  them,  and  also  with  the  Spanish  settlements,  as 
he,  with  the  advice  aforesaid,  shall  direct.  And  the  said  governor, 
with  the  advice  of  the  council,  shall,  from  time  to  time,  until 
further  provision  shall  be  made  for  the  same  by  the  General 
Assembly,  continue  to  relieve  the  said  volunteers,  or  militia,  by 
other  enlistments  or  detachments,  as  hereinbefore  directed,  and  to 
issue  warrants  on  the  treasurer  of  this  commonwealth  for  all 
charges  and  expenses  accruing  thereon,  which  the  said  treasurer  is 
hereby  required  to  pay  accordingly. 

And  be  it  further  enacted,  That  it  shall  and  may  be  lawful  for 
the  governor,  with  the  advice  of  the  council,  to  take  such  measures 
as  they  shall  judge  most  expedient,  or  the  necessity  of  the  case 
requires,  for  supplying  the  said  inhabitants,  as  well  as  our  friendly 
Indians  in  those  parts,  with  goods  and  other  necessaries,  either  by 
opening  a  communication  and  trade  with  New  Orleans,  or  otherwise, 
and  to  appoint  proper  persons  for  managing  and  conducting  the 
same  on  behalf  of  this  commonwealth. 

Provided,  That  any  of  the  said  inhabitants  may  likewise  carry 
on  such  trade  on  their  own  accounts,  notwithstanding. 


00  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

This  act  shall  continue  and  be  in  force  from  and  after  the  pass- 
ing of  the  same,  for  and  during  the  term  of  twelve  months,  and 
from  thence  to  the  end  of  the  next  session  of  assembly,  and  no 
longer. — [Oct.,  1778,  3d  of  Commonwealth.  Chapter  XXI,  page 
552,  Vol.  9,  Hening's  Statutes  at  Large. 

The  name  of  Illinois  county  was  changed  by  General  St.  Clair 
and  his  council,  when  he  became  governor  of  the  Northwestern 
Territory,  to  that  of  St.  Clair  county,  in  March,  1790.  Randolph 
county  was  established  in  1795,  and  these  two  counties  were  con 
tinned  by  the  Illinois  Territorial  Government,  when  Illinois  was  set 
off  from  Indiana  Territory,  in  1809,  and  the  boundaries  of  these 
two  counties  were  coterminous  with  that  of  the  present  State. 

Edwards  county  was  organized  November  *28,  1814,  and  its 
original  boundaries  were  as  follows:  "All  that  tract  of  country 
within  the  following  boundaries,  to-wit:  Beginning  at  the  mouth 
of  Bon  Pas  Creek,  on  the  Big  Wabash,  and  running  thence  due 
west  to  the  meridian  line  (3d  P.  M.),  which  runs  north  from  the 
mouth  of  the  Ohio  river;  thence  with  said  meridian  line,  and  due 
north  till  it  strikes  the  line  of  Upper  Canada;  thence  with  the  line 
of  Upper  Canada  to  the  line  that  separates  this  territory  from  the 
Indiana  Territory,  and  thence  with  the  said  dividing  line  to  the 
beginning." 

Edwards  county  was  cut  off  from  Gallatin,  and  then  White 
county,  in  1818,  was  taken  off  from  the  south  part  of  Edwards. 

In  its  original  organization  Edwards  county  embraced  an 
immense  area  of  territory,  extending  practically  from  the  Ohio 
river  (for  its  southern  boundary,  Gallatin  county,  was  but  relatively 
a  short  distance  from  that  river)  to  Upper  Canada,  including  what 
is  now  a  portion  of  the  State  of  Wisconsin. 

The  following  counties,  or  parts  of  counties,  in  Illinois,  have 
been  formed  out  of  the  territory  included  in  Edwards  county, 
Wabash,  Clay,  Jasper,  Coles,  Macon,  De  Witt,  Kankakee,  Kendall, 
De  Kalb,  Wayne,  Richland,  Effingham,  Cumberland,  Piatt,  McLean, 
Grundy,  Du  Page,  Boone,  Jefferson,  Lawrence,  Fayette,  Edgar, 
Champaign,  Livingston,  La  Salle,  McHenry,  Marion,  Crawford, 
Shelby,  Clark,  Vermillion,  Iroquois,  Will,  Kane,  Lake  and  Cook. 

It  is  difficult  to  imagine,  in  the  great  changes  that  are  here  shown 
to  have  taken  place  in  the  civil  divisions  of  the  State,  that  when 
Edwards  county  was  organized  neither  Cook  county  nor  the  city  of 
Chicago  had  an  existence;  but  that  Cook  county  was  embraced  in 


ILLINOIS  COUNTY.  37 

Edwards  county,  and  its  county  seat,  at  Palmyra,  at  the  falls  of  the 
Big  Wabash,  a  town  which  has  long  since  ceased  to  exist. 

When  the  first  constitution  of  the  State  of  Illinois  was  formed, 
not  a  man  was  in  the  convention  that  framed  it  who  lived  North  of 
what  is  now  the  limits  of  Madison  county.  All  of  the  records 
of  that  convention  have  been  lost. 

The  first  governor  of  Illinois  Territory,  by  proclamation,  divided 
the  whole  territory  into  three  counties,  and  so  it  remained  until  the 
14th  of  September,  1812,  when  Governor  Edwards,! -by  proclama- 
tion, established  the  county  of  Madison,  with  the  following  boun- 
daries, to- wit:  "Beginning  on  the  Mississippi,  to  run  with  the  second 
township  above  Cahokia,  east  until  it  strikes  the  dividing  line 
between  the  Illinois  and  Indiana  territories;  thence  Illinois,  with 
the  said  dividing  line  to  the  line  of  Upper  Canada ;  thence  with  said 
line  to  the  Mississippi ;  thence  down  the  Mississippi  to  the  place 
of  beginning. 

This  included  about  three-fourths  of  the  State. 

On  the  31st  of  January,  1821,  Pike  county  was  established,  by 
an  act  of  the  Legislature,  with  the  following  boundaries:  "  Begin- 
ning at  the  mouth  of  the  Illinois  river,  and  running  thence  up  the 
middle  of  said  river  to  the  forks  of  the  same  ;  thence  up  the  south 
fork  of  said  river  until  it  strikes  the  State  line  of  Indiana ;  thence 
north  with  said  line  to  the  north  boundary  line  of  this  State;  thence 
west  to  the  boundary  line  of  the  State,  and  thence  with  said  line  to 
the  place  of  beginning." 

On  the  28th  of  January,  1823,  Fulton  county  was  carved  out  of 
the  above  territory,  and  on  the  13th  of  January,  1825,  the  Legisla- 
ture passed  a  law  organizing  and  establishing  the  county  of  Peoria, 
with  the  following  boundaries,  to-wit :  Beginning  where  the  line 
between  townships  eleven  and  twelve  north  intersects  the  Illinois 
river;  thence  west  with  said  line  to  the  range  line  between  ranges 
four  and  five  east ;  thence  south  with  said  line  to  the  range  line 
between  townships  seven  and  eight;  thence  east  to  the  line  between 
ranges  five  and  six ;  thence  south  to  the  middle  of  the  main  chan- 
nel of  the  Illinois  river;  thence  up  along  the  middle  of  the  main 
channel  of  said  river  to  the  place  of  beginning. 

On  the  7th  of  December,  1825,  the  county  was  divided  into  three 
election  districts :  One  was  called  the  Chicago  precinct ;  and  Alex- 
ander Wolcott,  John  Kinzie  and  John  Baptiste  Beaubien,  all  inhab- 
itants of  Chicago,  were  appointed  judges  of  election  for  said  precinct. 


38  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

In  1778  Chicago  was  in  Virginia,  and  up  to  1809  was  in  Indiana. 
February  3, 1809,  Indiana  Territory  was,  by  an  act  of  Congress, 
divided  into  two  separate  governments.  President  Madison  ap- 
pointed John  Boyle,  an  associate  justice  of  the  Court  of  Appeals 
of  Kentucky,  governor  of  the  territory, but  he  declined,  and  Ninian 
Edwards,  chief  justice  of  the  same  court,  was  appointed  in  his 
stead.  Nathaniel  Pope  was  appointed  secretary;  Alexander  Stuart, 
Obadiah  Jones  and  Jesse  B.  Thomas,  judges;  Benjamin  II.  Boyle, 
attorney-general. 

Under  the  ordinance  of  1787  and  the  act  of  Congress  February 
3, 1809,  the  Governor  and  Judges  constituted  the  law-making  power 
of  the  territory,  and  as  such  they  met  for  the  first  time  at  Kaskas- 
kia,  June  13, 1809,  and  their  first  act  was  to  resolve  that  the  laws  of 
Indiana  Territory,  in  force  prior  to  March  1,  1809,  which  applied 
to  the  government  of  the  territory,  should  remain  in  full  force  and 
effect.  The  duration  of  the  session  was  seven  days. 

In  1821  Chicago  was  in  Pike  county;  in  1823  in  Fulton  county; 
and  in  1825  in  Peoria  county. 

The  act  creating  Cook  county  was  passed  and  approved  by  the 
General  Assemby  of  Illinois,  January  15,  1831,  and  by  that  same 
act  Chicago  was  made  the  county  seat,  and  a  ferry  established  at 
the  seat  of  justice.  It  was  named  after  Daniel  P.  Cook,  a  son-in- 
law  of  Governor  l^inian  Edwards,  who  was  one  of  the  first  United 
States  Senators  from  this  State.  He  was  a  member  of  Congress 
from  1820  to  1827,  and  died  during  that  year  at  the  age  of  thirty- 
two. 

In  March,  1831,  Cook  county  was  organized.  It  embraced 
within  its  boundaries  all  the  territory  which  now  constitutes  the 
counties  of  Lake,  McHenry,  Du  Page  and  Will,  and  the  only  voting 
place  in  the  county  at  the  first  election  was  Chicago. 


CHAPTER   XII. 
Constitutional  Conventions  in  Illinois. 

State  of  Illinois  has  held  already  four  constitutional  con- 
-L      ventions.      The    first   was  in  1818,  under   an    act   of  Con- 
gress passed  April   18,  1818,  termed  an  enabling  act,  and  was  for 


CONVENTIONS  IN  ILLINOIS.  39 

the  purpose  of  forming  a  "  State  Constitution  and  a  State  Govern- 
ment," republican  in  form,  and  in  accordance  with  the  principles 
embodied  in  the  ordinance  of  1787. 

The  next  was -held  in  1847,  the  next  in  1862,  and  the  last  one  in 
1869-70.  Each  of  these  last  conventions  was  for  the  purpose  of 
"  altering,  revising  and  amending  "  the  then  existing  Constitution. 

THE    CONSTITUTION    OF   1818. 

In  1818  the  whole  number  of  people  in  the  State  of  Illinois  was 
about  45,000.  Some  two  or  three  thousand  of  these  were  the 
descendants  of  the  old  French  settlers  in  the  villages  of  Kaskas- 
kia,  Prairie  Du  Rocher,  Prairie  Du  Pont,  Cahokia,  and  Peoria. 
Many  of  these  had  intermarried  with  the  Indians  and  lived  a  roving 
life,  hunting  and  trapping.  The  American  inhabitants  were  chiefly 
from  Kentucky,  Virginia,  Maryland  and  Pennsylvania.  Some  of 
them  had  been  officers  and  soldiers  under  George  Rogers  Clark,  and 
were  good  types  of  the  pioneer  element.  They  were  farmers,  me- 
chanics and  soldiers,  and  skilled  in  Indian  warfare.  The  settled 
part  of  the  State  did  not,  in  1818,  extend  much  north  of  Edwards- 
ville  and  Alton,  while  all  the  rest  of  the  State  was  comparatively 
an  unbroken  wilderness.  The  Black  Hawk  war  did  not  occur  until 
1832. 

The  first  Constitution  was  made  up  in  its  principal  provisions 
from  the  Constitutions  of  Kentucky,  Ohio  and  Indiana;  was  adopted 
by  the  delegates  and  never  submitted  to  the  people — following,  in 
this  regard,  the  precedent  set  by  most  of  the  slave  States.  Indeed, 
the  first  Constitution,  we  believe,  that  ever  was  submitted  to  the 
people  for  its  adoption  or  rejection,  was  in  the  case  of  Maine, 
in  1820. 

It  was  very  objectionable,  in  vesting  the  Legislature  with  the 
appointing  power  of  most  of  the  principal  officers  of  the  State — and 
this  we  are  told  arose  in  this  way  :  As  originally  framed  this  power 
was  committed  to  the  executive,  but  as  it  was  expected  that  Shad- 
rach  Bond  would  be  elected  governor,  and  that  he  would  not 
appoint  a  particular  candidate  to  the  office  of  state  auditor,  whom 
the  members  of  the  convention  favored,  they  changed  the  provis- 
ion,* and  inserted  this  clause  in  the  schedule:  "An  auditor  of 
public  accounts,  an  attorney-general,  and  such  other  officers  as  may 
be  necessary,  may  be  appointed  by  the  General  Assembly."  At 
tirst  the  Legislature  limited  its  exercise  of  this  power  to  the  appoint- 


40  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

ment  of  the  above  designated  officers,  the  governor  appointing  the 
state's  attorneys,  recorders  and  other  officers  and  agents  provided 
for  by  law,  but  whenever  it  happened  that  the  governor  was  not  in 
accord  with  the  General  Assembly,  it  would  deprive  him  of  his 
patronage.  Thus  there  was  a  continual  liability  to  a  change  of  the 
appointing  power,  and  the  consequences  were  a  constant  pull- 
ing, hauling  and  intriguing,  which  led  to  corrupt  combinations  and 
the  most  disgraceful  system  of  log  rolling  that  could  be  imagined. 

In  the  election  of  members  to  the  convention  the  only  questions 
which  were  agitated  and  discussed  before  the  people  were  the  right 
of  constituents  to  instruct  their  representatives,  and  the  introduction 
of  slavery.  It  is  needless  to  say  that  the  Constitution  bears  many 
visible  marks  of  the  slave-holder,  and  the  slave-holding  interests 
were  unduly,  and  most  unjustly  protected,  as  will  appear  by  arti- 
cle YI  of  that  instrument. 

While  professing  to  abolish  slavery  in  the  first  section,  by 
declaring  that  "  neither  slavery  nor  involuntary  servitude  shall  here- 
after be  introduced  into  this  State,  otherwise  than  for  the  punish- 
ment of  crimes,  whereof  the  party  shall  have  been  duly  convicted, 
it  proceeded  to  recognize  the  validity  of  contracts  of  indenture  of 
"persons"  in  several  ways,  especially  the  third  section,  which  is  in 
these  words : 

"  Sec.  3.  Each  and  every  person  who  has  been  bound  to  service 
by  contract  or  indenture  by  virtue  of  the  laws  of  the  'Illinois  Ter- 
ritory, heretofore  existing,  and  in  conformity  to  the  provi- 
sions of  the  same,  without  fraud  or  collusion,  shall  be  held  to  a 
specific  performance  of  their  contracts  or  indentures;  and  such 
negroes  and  rnulattoes  as  have  been  registered  in  conformity  with 
the  aforesaid  laws,  shall  serve  out  the  time  appointed  by  said  laws. 
Provided,  however,  That  children  hereafter  born  of  such  person, 
negroes  or  mulattoes,  shall  become  free — the  males  at  the  age  of 
twenty-one  years,  the  females  at  the  age  of  eighteen  years;  each  and 
every  child  born  of  indentured  parents  shall  be  entered  with  the 
clerk  of  the  county  in  which  they  reside,  by  their  owners,  within 
six  months  after  the  birth  of  said  child." 

Under  and  by  virtue  of  those  provisions  the  famous  Black  Laws 
were  passed,  which  disgraced  the  statute  books  of  this  State  for 
years,  and  which  established  a  species  of  slavery  about  as  effect- 
ually as  if  it  actually  existed.  Perhaps  this  is  rather  too  strong 
language,  but  these  laws  served  to  annoy  greatly  the  negroes  and 


CONVENTIONS  IN   ILLINOIS.  41 

mulattoes,  and,  strange  to  say,  were  continued  in  force  until  repealed 
by  the  General  Assembly,  in  1867. 

A  still  further  explanation  of  this  matter  may  not  be  amiss. 

In  1807  the  Indiana  Legislature  passed  an  act  authorizing  the 
owners  of  negroes  and  mulattoes  more  than  fifteen  years  of  age  to 
bring  them  into  the  Territory,  and  to  have  them  bound  to  service 
by  indenture  for  such  time  as  the  master  and  slave  might  agree 
upon.  If,  within  thirty  days  of  the  time  he  was  brought  into  the 
Territory,  the  slave  would  not  consent  to  be  indentured,  then  his 
owner  should  have  sixty  days  in  which  to  remove  him  into  any 
State  where  slavery  existed.  The  law  also  permitted  any  person  to 
bring  slaves  under  fifteen  years  of  age  into  the  Territory,  and  to 
hold  them  to  service — the  males  until  the  age  of  thirty-five,  the 
females  until  the  age  of  thirty -two  years.  Male  children,  born  in 
the  Territory,  of  a  parent  of  color  owing  service  by  indenture,  should 
serve  the  master  until  the  age  of  thirty  years;  female  children 
until  the  age  of  twenty-eight  years.  This  act  continued  in  force 
until  1810.  On  the  territorial  statute  book  are  also  found  very  re- 
pressive acts  concerning  servants.  This  act  was  continued  in  force 
by  the  Illinois  Legislature  after  the  division  of  the  Territory.  In 
1814  the  same  Legislature  passed  a  law  providing  that  slaves  might, 
with  consent  of  their  owners,  hire  themselves  in  the  Territory  for 
a  term  not  exceeding  one  year,  and  that  such  act  should  not  in  any 
way  affect  the  master's  right  of  property  in  them  in  the  State  or 
Territory  where  they  belonged.  The  preamble  of  this  act  assigns 
as  reasons  for  its  provisions  that  mills  can  not  be  erected,  or  other 
needed  improvements  made,  for  want  of  laborers;  and,  particularly, 
that  the  manufacture  of  salt,  the  supply  of  which  should  be  abun- 
dant and  the  price  low,  can  not  be  carried  on  by  means  of  white 
men.  Still  further,  an  act  passed  in  1812  forbade  the  emigration 
of  free  negroes  to  the  Territory  of  Illinois  under  severe  penalties; 
and  enjoined  free  negroes  already  there  to  register  themselves  and 
their  children  in  the  office  of  the  clerk  of  the  county,  also  under 
severe  penalties. 

When  one  remembers  that  the  Northwest  was  covered  on  two 
sides  by  slave  territory,  from  which  it  was  separated  onTv  by  the 
Ohio  and  Mississippi  rivers,  he  appreciates  the  facilities  that  such 
enactments  as  the  foregoing  gave  for  evading  the  intent  of  the 
sixth  compact  of  the  ordinance.  Comment  is  not  needed  to  show 
that  the  ingenuity  here  displayed  could  have  invented  a  system  of 


42  CONSTITUTIONAL   HISTORY    OP    ILLINOIS* 

enforced  labor  not  at  all  inferior  to  that  devised  by  some  of  the 
Southern  States  under  President  Johnson's  reconstructed  scheme. 
Moreover,  these  enactments  explain  certain  provisions  respecting 
indentures  in  the  first  Constitutions  of  Ohio,  Indiana  and  Illinois 
that  would  otherwise  be  inexplicable. 

When  the  resolution  declaring  the  admission  of  Illinois  to  the 
Union  was  on  its  passage  through  the  House  of  Representatives,  Mr. 
Tallmadge,  of  Kew  York,  opposed  its  adoption  on  the  ground  that 
it  contravened  the  sixth  article  of  the  ordinance  of  1787.  He 
felt  himself  constrained  to  come  to  the  conclusion  that  the  section 
of  the  Constitution  described  above  embraced  a  complete  recogni- 
tion of  existing  slavery,  if  not  providing  for  its  future  introduction 
and  toleration.  He  contrasted  the  Illinois  and  the  Indiana  Consti- 
tutions, to  the  disadvantage  of  the  former.  Thirty-four  votes  were 
registered  in  the  house  against  the  resolution. 

In  the  constitutional  convention  of  1818  there  were  but  three 
lawyers,  Jesse  B.  Thomas,  Ellas  Kent  Kane  and  A.  F.  Hubbard,  so 
far  as  we  know. 

Thomas  was  a  delegate  to  Congress  from  Indiana  Territory  in 
1809,  at  the  time  it  was  divided,  and  the  principal  agent  in  securing 
the  division.  He  was  a  lawyer  of  ability,  of  high  standing,  but  an 
advocate  of  slavery,  and  in  the  subsequent  history  of  Illinois  was  a 
leader  of  the  pro-slavery  party. 

He  was  president  of  the  convention  which  formed  our  State 
Constitution  at  the  time  we  were  admitted  into  the  Union,  and  was 
elected  the  first  United  States  Senator. 

The  leading  member  of  the  convention  was  probably  Elias 
Kent  Kane,  although  we  can  not  certainly  tell,  owing  to  the  loss  or 
destruction  of  the  records  of  the  convention.  He  was  born  in  the 
State  of  New  York  and  was  bred  to  the  profession  of  the  law.  He 
removed,  when  a  very  young  man,  to  Tennessee,  and  finally  came  to 
Illinois  and  settled  in  Kaskaskia  in  1815,  when  he  was  about  twenty 
years  of  age.  His  talents  were  both  solid  and  brilliant,  and  he 
soon  became  a  leader;  was  appointed  Secretary  of  State  under  the 
new  government  in  1818,  then  became  a  member  of  the  General 
Assembly  and  finally  United  States  Senator,  and  died  a  member  of 
that  body  in  1835. 

Kane  county  on  the  Fox  river  was  named  after  him. 

A.  F.  Hubbard  is  chiefly  distinguished  for  having  attempted  to 
oust  governor  Coles  from  the  office  of  governor — while  he  was 


CONVENTIONS    IN    ILLINOIS. 


43 


temporarily  absent  from  the  State — by  issuing  a  call  for  an  extra 
session  of  the  General  Assembly,  and  appointing  one  "W.  L.  D.  Ewing 
pay  master-general  of  the  State  militia,  etc.,  basing  his  claim  for  so 
doing  on  a  provision  in  the  executive  article  of  the  Constitution, 
which  reads  as  follows: 

"In  case  of  impeachment,  refusal  to  qualify,  resignation  or  ab- 
sence from  the  State,  the  lieutenant-governor  shall  exercise  all  the 
power  and  authority  appertaining  to  the  office  of  governor,  until 
the  time  pointed  out  by  the  Constitution  for  the  election  of  a  gov- 
ernor shall  arrive;  unless  the  General  Assembly  shall  otherwise 
provide  by  law  for  the  election  of  a  governor  to  fill  such  vacancy." 

Under  this  provision  Hubbard  claimed  that  he  was  governor 
de  jure  and  de  facto,  having  been  elected  lieutenant-governor  at 
the  election  in  1822,  but  on  an  opposition  ticket.  The  State  at  that 
time  was  considered  overwhelmingly  democratic,  and  Chief  Justice 
Phillips  was  the  regular  candidate  of  that  party,  with  Adolphus  F. 
Hubbard  lieutenant-governor.  Edward  Coles,  a  very  popular 
and  strong  anti-slavery  man,  was  brought  out  against  Phillips,  and 
was  elected  over  him  by  a  considerable  majority,  but  both  branches 
of  the  Legislature  were  opposed  to  him,  and  every  kind  of  a  partisan 
scheme  was  resorted  to,  to  annoy  him.  Mobs  were  incited  against 
him,  with  threats  of  personal  violence,  suits  were  commenced 
against  him  for  bringing  slaves  into  the  territory  and  liberating 
them,  and  he  was  heavily  fined.  At  last,  while  temporarily  absent 
from  the  State,  the  bold  attempt  was  made  by  Hubbard  to  usurp 
his  office.  The  issuing  of  a  commission  to  Ewing  was,  at  the  time, 
considered  a  very  shrewd  move,  and  it  was  thought  for  a  time  that 
it  would  succeed,  but  Judge  Lockwood  was  at  that  time  on  the 
Supreme  Bench,  and  he  showed  so  clearly  the  ridiculous  nature  of 
the  attempt,  that  it  came  to  naught.  The  legal  history  of  this 
affair  may  be  found  set  forth  at  large  in  Breese's  reports,  and  arose 
on  an  application  of  Ewing  to  compel  the  Secretary  of  State,  George 
Forquer,  by  mandamus,  to  append  his  signature  to  this  commission 
which  had  been  issued  by  Hubbard. 

"We  know  but  very  little  of  the  constitutional  convention  of  1818, 
owing  to  the  fact  that  all  its  records  have  been  lost  or  destroyed, 
but  there  is  one  thing  that  Governor  Ford  mentions  in  his  history 
of  Illinois  that  is  quite  interesting,  and  that  is  that  during  the  ses- 
sion of  the  convention  of  1818,  the  Reverend  Mr.  Wiley  and  his 
congregation  of  Covenanters  in  Randolph  county,  sent  in  a  petition 


44  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

asking  the  convention  to  declare  in  the  Constitution  that  "  Jesus 
Christ  was  the  head  of  the  government,  and  that  the  Holy  Scriptures 
were  the  only  rule  of  faith  and  practice."  This  petition  was  either 
not  noticed  at  all  or  was  acted  upon  unfavorably,  which  so  displeased 
the  Covenanters,  that  they  henceforth  looked  upon  the  Constitu- 
tion as  "an  heathen  and  unbaptized  government,"  and  refused  to 
vote,  to  work  on  the  roads,  serve  on  juries,  hold  any  office  or  do 
any  act  showing  that  they  recognized  the  government. 

This  state  of  affairs  continued  until  the  great  contest  commenced 
in  1824,  whether  Illinois  should  become  a  slave  or  a  free  State, 
when  they  arose  in  their  might  and  voted  unanimously  against 
slavery. 

As  early  as  1818  the  State  was  filled  with  a  class  of  politicians 
who  were  intent  in  controlling  every  office  in  sight,  whether  local, 
State  or  National,  and  when  the  Constitution  was  formed  the  gov- 
ernor was  clothed  with  a  large  measure  of  the  appointing  power. 
Shadrach  Bond  had  been  fixed  upon  by  the  common  barrators  for 
the  first  governor,  and  the  convention  wished  for  some  reason  to 
have  Elijah  C.  Berry  the  first  auditor  of  public  accounts;  but  it 
having  been  ascertained  that  Bond  would  not  appoint  him,  the  man- 
agers, at  the  very  last  moment,  and  just  before  it  was  adopted  in 
the  Convention, affixed  this  provision  to  the  schedule:  "An  auditor 
of  public  accounts,  an  attorney-general,  and  such  other  officers  of 
the  State  as  may  be  necessary,  may  be  appointed  by  the  General 
Assembly,"  as  above  stated. 

Thus  "accoutered,"  the  Constitution  was  adopted  and  "they all 
plunged  in."  By  "  they"  we  mean  the  whole  army  of  hungry 
politicians,  who  were  waiting  the  day  when  they  could  obtain  access 
to  the  public  crib  and  fatten  on  its  stores.  An  inventory  was  taken, 
and  who  were  "  officers  of  the  State "  and  who  were  not,  soon 
became  a  matter  of  debate,  and  the  question  was  asked  by  members 
of  the  General  Assembly :  Were  state's  attorneys  of  the  circuits — 
were  canal  commissioners,  fund  commissioners,  commissioners  of 
the  board  of  public  works,  bank  directors,  canal  agents,  etc. — were 
they  State  officers  ?  And  the  reply  came  back  from  the  General 
Assembly  every  time  :  Yes,  they  were  State  officers.  And  the 
General  Assembly  absorbed  them  with  great  alacrity  and  relish. 

Ford  says :  "  Some  times  such  agents  were  appointed  by  elec- 
tion; then,  again,  the  Legislature  would  pass  a  law  enacting  them 
into  office  by  name  and  surname.  They  contrived  to  strip  the  gov- 


CONVENTIONS  IN  ILLINOIS.  45 

ernor  of  all  patronage  not  positively  secured  to  him  by  the  Consti- 
tution— such  as  the  appointment  of  a  secretary  of  stale  and  the  till- 
ing of  vacancies  during  the  recess  of  their  sessions.  At  tirst  the 
Legislature  contented  itself  with  the  power  to  elect  an  auditor  and 
attorney-general ;  the  governor,  all  the  state's  attorneys,  the  record- 
ers of  counties,  all  State  officers  and  agents  occasionally  needed, 
and  many  minor  county  officers.  But  in  the  administration  of  Gov- 
ernor Duncan,  he  was  finally  stripped  of  all  patronage,  except  the 
appointment  of  notaries  public  and  public  administrators.  Some- 
times one  Legislature,  feeling  pleased  with  the  governor,  would 
give  him  some  appointing  power  which  their  successors  would  take 
away  if  they  happened  to  quarrel  with  him. 

This  constant  changing  and  shifting  of  powers  from  one  co- 
ordinate branch  of  the  government  to  another,  which  rendered  it 
impossible  for  the  people  to  foresee  exactly  for  what  purpose  either 
the  governor  or  the  Legislature  were  elected,  was  one  of  the  worst 
features  of  the  government.  It  led  to  innumerable  intrigues  and 
corruptions,  and  for  a  long  time  destroyed  the  harmony  between 
the  executive  and  legislative  departments. 

And  all  this  was  caused  by  the  convention  of  1818  in  the  attempt 
to  get  one  man  into  an  office  of  no  very  considerable  importance. 

At  the  time  of  the  formation  of  the  Constitution  of  1818  the  State 
was  divided  into  fourteen  counties,  namely:  St.  Clair,  Randolph, 
Madison,  Gallatin,  Johnson,  Edwards,  "White,  Pope,  Jackson, 
Crawford,  Bond,  Union,  Washington  and  Franklin. 

St.  Clair  was  represented  by  John  Messenger  and  James 
Leman,  Jr. 

Randolph  by  George  Fisher  and  Elias  Kent  Kane. 

Madison  by  B.  Stephenson,  Joseph  Borong  and  Abraham 
Prickett. 

Gallatin  by  Michael  Jones,  Leonard  White  and  Adolphus 
Frederick  Hubbard. 

Johnson  was  represented  by  Hezekiah  West  and  William 
McFatridge. 

Edwards  by  Seth  Gord  and  Levi  Compton. 

Pope  by  Samuel  O'Melveny  and  Ferguson. 

White  by  Willis  Hargrave  and  Enoch  Moore. 

Jackson  by  Conrad  Well  and  James  Hall,  Jr. 

Crawford  by  Joseph  Kitchell  and  Ed.  K  Cullom. 

Bond  by  Thomas  Kirkpatrick  and  Samuel  G.  Morse. 


46  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

Union  by  William  Echols  and  John  Whiteacre. 

Washington  by  Andrew  Bankson,  and 

Franklin  by  Isham  Harrison  and  Thomas  Roberts. 

Jesse  B.  Thomas  was  president  of  the  convention  and  William 
C.  Greenup  was  secretary. 

The  convention  assembled  at  Kaskaskia  on  the  first  Monday  of 
August,  1818,  in  accordance  with  the  fourth  section  of  the 
enabling  act,  and  adjourned  on  the  26th  of  August. 


CHAPTEE  XIII. 
The  Founders  of  the  Commonwealth. 

"  TN  the  birth  of  societies,"  says  Montesquieu,  "it  is  the  chiefs 
J-  of  the  republics  who  form  the  institution,  and  in  the  sequel 
it  is  the  institution  which  forms  the  chiefs  of  the  republics."  And 
he  adds :  "  One  of  the  causes  of  the  prosperity  of  Rome  was  the 
fact  that  its  kings  were  all  great  men.  We  find  nowhere  else  in 
history  an  uninterrupted  series  of  such  statesmen  and  such  military 
commanders. 

"  Historic  truth  ought  to  be  no  less  sacred  than  religion.  If  the 
precepts  of  faith  raise  our  souls  above  the  interests  of  this  world,  the 
lessons  of  history,  in  their  turn,  inspire  us  with  the  love  of  the 
beautiful  and  the  just,  and  the  hatred  of  whatever  presents  an 
•obstacle  to  the  progress  of  humanity.  These  lessons,  to  be  profit- 
able, require  certain  conditions.  It  is  necessary  that  the  facts  be 
produced  with  a  rigorous  exactness,  that  the  changes,  political  or 
social,  be  analyzed  philosophically,  that  the  exacting  interest  of  the 
details  of  public  men  should  not  divert  attention  from  the  political 
part  they  played,  or  cause  us  to  forget  their  providential  mission." 

Illinois  was  fortunate  in  the  beginning  by  having  for  her  found- 
ers a  race  of  great  men.  Col.  George  Rogers  Clark,  the  conqueror 
of  the  Illinois  country,  takes  rank  next  to  Hannibal. 

Governor  Edwards,  the  first  governor  of  the  territory  of  Illinois 
and  the  first  senator  of  the  State,  was  the  friend  of  Madison  and  the 
schoolmate  of  William  Wirt.  He  was  born  in  Maryland  and  was 
brought  up  under  the  very  best  educational  and  social  influences 


OF  THE  COMMONWEALTH.  47 

of  his  native  State.  He  early  removed  to  Kentucky,  became  chief 
justice  of  that  State,  and  occupied  that  position  at  the  time  that 
Madison  selected  him  as  governor  of  the  Illinois  Territory. 

At  the  time  Illinois  was  admitted  into  the  Union  the  affairs  of 
the  State  were  wholly  controlled  by  pro-slavery  men,  who  seemed 
bent  upon  making  the  State  a  slave  State. 

Governor  Edwards  himself,  the  foremost  citizen  of  the  State 
and  a  man  of  commanding  influence,  first  governor  of  the  Illinois 
Territory,  afterward  senator,  was  a  slave-holder,  and  held  slaves  in  the 
territory,  contrary  to  the  ordinance  of  1787 — the  great  organic  law  of 
the  Northwest  Territory — and  contrary  to  his  oath  of  office,  as  will 
be  seen  by  the  following  notice,  under  his  own  hand  and  signature. 

"  NOTICE. — I  have  for  sale  22  slaves;  among  them  are  several  of 
both  sexes,  between  the  ages  of  10  and  17  years.  If  not  shortly 
sold  I  shall  wish  to  hire  them  in  Missouri  Territory.  I  have 
also  for  sale  a  full-blooded  stud  horse,  a  very  large  English  bull  and 
several  young  ones. 

"  Oct.  1, 1815.  NINIAN  EDWARDS." 

Taken  from  the  "  Illinois  Herald,"  published  in  Kaskaskia  Oct. 
1,  1815. 

Governor  Edwards,  though  by  birth  a  southern  man,  and 
appointed  from  Kentucky  as  governor  upon  the  organization  of  the 
territory,  was  yet,  as  William  H.  Brown  said,  in  favor  of  a  free 
Constitution  for  Illinois,  and  did,  much  to  his  credit,  range  him- 
self on  the  side  of  the  free  soilers  in  the  great  struggle  which  took 
place  between  the  contending  hosts  in  1824. 

The  Secretary  of  State  was  Nathaniel  Pope,  a  man  of  great 
ability,  refined  in  his  manners  and  of  scholarly  tastes.  He  was 
chosen  territorial  delegate  to  Congress  in  1816,  and  it  was  by  and 
through  his  efforts  that  the  northern  boundary  of  the  State  was  so 
changed  as  to  bring  Chicago  into  Illinois  instead  of  leaving  it  in 
Wisconsin. 

Judge  Jesse  B.  Thomas  was  a  delegate  to  Congress  from  Indiana 
Territory  at  the  time  it  was  divided,  in  1809,  and  the  Illinois  Ter- 
ritory created.  He  removed  to  Kaskaskia,  was  elected  the  presi- 
dent of  the  constitutional  convention  of  1818,  and  then  senator, 
with  Governor  Edwards  as  his  colleague.  He  was  a  strong  pro- 
slavery  man,  and  a  leader  of  that  party  in  the  State,  but,  as  we  have 
been  told,  regretted  his  course  before  he  died.  He  died  in  Ohio. 
He  was  born  in  Hagerstown,  Maryland,  and  claimed  to  be  a  direct 


48  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

descendant  of  Lord  Baltimore.  He  is  said  to  have  been  the  author 
of  the  Missouri  Compromise  Bill  of  1820. 

Judge  Griswold  was  from  New  England — strict  as  a  Puritan 
and  conscientious  as  a  saint.  Governor  Reynolds  says  of  him:  "  He 
was  a  correct,  honest  man,  a  good  lawyer,  paid  his  debts  and  sung 
David's  psalms." 

"William  H.  Brown  was  the  friend  and  companion  of  Lockwood 
and  Coles,  and  one  of  the  most  upright  men  that  we  ever  knew. 
He  died  at  the  "Bible  Hotel,"  at  Amsterdam,  Holland,  in  1867,  of 
small-pox,  while  on  a  foreign  journey,  some  twenty-three  years  ago, 
at  an  advanced  age. 

John  Reynolds,  familiarly  known  as  the  "  Old  Ranger  "  is  one 
of  the  most  picturesque  characters  that  ever  lived  in  this  State. 
He  was  born  of  Irish  parentage  in  Pennsylvania,  February  26, 
1788;  removed  to  Illinois  in  1800 — lived  on  a  farm  for  a  time;  then 
went  to  school  at  Knoxviile,  Tennessee — was  ever  foremost  in 
horse  and  foot-racing — shooting  matches — studied  law,  and  when 
he  hung  out  his  shingle  at  Cahokia  in  1814,  announced  his  advent 
in  the  "  Illinois  Herald,"  published  at  Kaskaskia,  as  follows : 

"  To  the  poor  people  of  Illinois  and  Missouri  Territory.  To 
the  above  cla^s  of  mankind  whose  pecuniary  circumstance  will  not 
admit  of  feeing  a  lawyer,  I  tender  my  professional  services  as  a 
lawyer  in  all  courts  I  may  practice  in,  without  fee  or  reward. 

JOHN  REYNOLDS." 

He  was  great  on  the  stump,  in  church,  school-house,  grocery, 
or  the  open  air.  He  became  judge  of  the  Supreme  Court,  and 
governor  of  the  State. 

Among  the  reminiscences  of  the  times  is  an  advertisement  in 
the  "Missouri  Gazette"  of  May  14,  1816,  as  follows: 

"  FIFTY  DOLLARS  REWARD 

Will  be  given  to  any  person,  who  will  deliver  to  me,  in  Caho- 
kia, a  negro  boy  named  Moses,  who  ran  away  from  me  in  Cahokia 
about  two  months  since.  He  is  about  sixteen  years  old.  well  made, 
and  did  belong  to  Messrs.  McKnight  &  Brady,  in  St.  Louis, 
where  he  has  been  since  frequently,  and  is  supposed  to  be  harbored 
there  or  thereabout.  He  had  on  a  hunting  shirt  when  he  left  me, 
May  14,  1816. 

JOHN  REYNOLDS." 

Governor  Ford,  in  speaking  of  Reynolds,  says  that  he  had 
passed  his  life  on  the  frontier  among  a  frontier  people;  had  learned  all 


CONVENTIONS  OF   ILLINOIS.  49 

the  by-words,  catch- words,  old  and  odd  sayings  and  figures  of  speech 
invented  by  vulgar  ingenuity  and  common  among  a  backwoods 
people;  to  these  he  had  added  a  copious  supply  of  his  own,  and 
had  diligently  compounded  them  all  into  a  language  peculiar  to 
himself,  which  he  used  on  all  occasions,  public  and  private.  He 
was  a  man  of  remarkably  good  sense  and  shrewdness  for  the  sphere 
in  which  he  was  destined  to  move,  and  possessed  a  fertile  imagina- 
tion, a  ready  eloquence,  and  a  continual  mirthfnlness  and  pleasantry 
when  mingling  with  the  people.  He  had  a  kind  heart,  and  was 
ready  to  do  a  favor,  and  never  harbored  resentment  against  any 
human  being. 

Shadrach  Bond  was  another  great  man  who  has  left  his  mark 
on  the  times,  and,  although  a  pro-slavery  man,  was  in  his  day  and 
generation  highly  regarded  and  esteemed. 

Pie  was  elected  the  first  governor  of  the  State  by  an  almost 
unanimous  vote.  He  came  to  the  Territory  from  Maryland  in  179i, 
and  settled  in  the  American  Bottom,  in  what  is  now  Monroe  county. 
He  was  of  commanding  presence,  noble  mien,  and  of  great  dignity 
of  character.  He  kept  horses  and  hounds,  and  lived  like  one  of 
the  landed  gentlemen  of  the  eighteenth  century.  He  was  a  mem- 
ber of  the  Territorial  Legislature  of  Ohio  and  Indiana,  a  captain  in 
the  war  of  1812,  and  was  the  first  delegate  to  Congress  from  Illi- 
nois Territory,  taking  his  seat  December  3,  1812. 

Pierre  Menard  was  elected  lieutenant-governor  on  the  same 
ticket  with  Bond,  and  he  also  was  a  most  remarkable  man.  He  was 
of  French  extraction,  born  at  St.  Antoine,  thirty-five  miles  from 
Montreal,  October  7,  1766,  and  came  to  Kaskaskia  from  Yincennes 
in  1790,  and  engaged  in  merchandising.  He  was  a  great  favorite 
with  the  Indians,  became  active  in  public  affairs,  was  elected  a 
member  of  the  Territorial  Legislature  of  Indiana,  afterward  removed 
to  Kaskaskia  and  there  became  president  of  the  council  of  the  Ter- 
ritorial General  Assembly  of  Illinois,  and  was  the  most  distinguished 
of  all  the  French  emigrants  that  ever  came  to  the  West. 

He  was  a  good  financier  and  understood  its  principles  well.  His 
command  of  the  English  language  was  somewhat  limited,  and  once 
when  the  proposition  came  up  in  the  Senate  to  memorialize  the 
Treasurer  of  the  United  States  to  secure  the  _bills  of  the  bank  of 
Edwardsville  in  payment  of  lands,  believing  it  to  be  objectionable, 
he  refused  to  put  the  question.  Upon  its  being  demonstrated  to  him 
that  it  was  his  duty  to  put  the  question,  he  said :  •  "  Gentlemen,  if 
4 


50  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

I  inns'  I  mus'.  You  who  are  in  favor  of  dis  resolution  will  say 
aye;  but  I  bet  you  one  tousand  dollar  Congress  never  make  him 
land-office  money;  you  are  opposed  will  say  no." 

Thomas  Reynolds,  a  younger  brother  of  Governor  John  Rey- 
nolds, was  an  active  politician  in  this  State  until  1828,  when  he 
removed  to  Missouri,  of  which  commonwealth  he  was  elected  gov- 
ernor in  1840. 

He  possessed  many  of  the  original  traits  and  picturesque  char- 
acteristics of  his  brother.  He  was  not  only  a  very  popular  man 
among  his  associates,  but  he  was  a  long-headed,  shrewd  and  push- 
ing man,  and  never  allowed  slight  obstacles  to  daunt  his  courage  or 
thwart  his  purposes. 

George  Flower,  one  of  the  old  pioneers  of  whom  we  shall  speak 
hereafter,  writing  from  his  personal  knowledge,  says :  "  Our  influ- 
ential men,  and  all  who  held  office,  from  the  governor  to  the  con- 
stable, were  from  slave  States.  Every  sheriff  and  every  clerk  of 
the  county  were  pro-slavery  men;  every  lawyer  and  all  our  judges 
were  from  slave  States  and  pro-slavery.  I  know  of  but  one  excep- 
tion in  the  whole  bar  that  attended  our  courts,  and  that  was  Samuel 
D.  Lockwood." 


CHAPTER  XIY. 

Governor  Coles,  and  his  Immediate  Friends  and  Contem- 
poraries. 

/^  OYERNOR  COLES,  Judge  Lockwood  and  Judge  Griswold 
VJToccupy  very  conspicuous  positions  in  our  history;  especially 
Governor  Coles;  and  if  ever  any  man  deserves  immortality  it  is  he. 

He  drew  around  him  the  very  best  men  of  his  time,  such  men 
as  Lockwood,  Birkbeck,  Flower,  Daniel  P.  Cook  and  William  H. 
Brown,  and  threw  his  heart  and  soul  into  the  fight  against  human 
slavery,  and  it  was  his  efforts  probably  more  than  any  one  man's 
that  succeeded  in  making  Illinois  forever  a  free  State. 

His  life  was  pure  and  above  reproach.  He  endured  insults, 
reproaches,  buffetings  and  persecutions  without  number,  but  survived 
them  all  and  died  peacefully  at  his  home  in  Philadelphia  in  1838. 

His  career  demands  something  more  than  a  passing  notice. 


GOVERNOR  COLES  AND  HIS  IMMEDIATE  FRIENDS.  51 

He  was  born  in  Albemarle  county,  Virginia,  December  15,  1786. 
His  father,  John  Coles,  had  been  a  colonel  in  the  Revolutionary 
War.  He  was  fitted  for  college  by  private  tutors,  was  sent  to 
Hampden  Sidney  in  1805,  then  to  William  and  Mary  College  at 
Williamsburg,  but  did  not  graduate  therefrom  owing  to  a  very  severe 
accident  by  which  his  leg  was  fractured  in  so  severe  a  manner  as  to 
impair  his  health  and  prevent  him  from  performing  all  labor.  His 
limb  was  with  great  trouble  preserved  and  his  health  finally  restored. 
Among  his  classmates  were  Lieutenant-General  Scott,  President 
John  Tyler,  William  S.  Archer,  United  States  Senator  from  Vir- 
ginia, and  Mr.  Justice  Baldwin  of  the  Supreme  Court  of  the  United 
States.  The  Coles  family  was  a  very  prominent  one  and  allied 
with  some  of  the  most  distinguished  politicians  in  the  State,  and  the 
family  mansion  was  the  seat  of  all  the  old-fashioned  Virginia  Com- 
monwealth. It  was  visited  by  Patrick  Henry,  Jefferson,  Madison, 
Monroe,  the  Randolphs,  Tazwell,  Wirt,  and  many  others  of  the 
leading  men  of  that  time.  At  the  age  of  twenty-three  he  became 
the  private  secretary  of  President  Madison  and  so  remained  for 
the  period  of  six  years.  His  correspondence  with  Thomas  Jef- 
ferson upon  the  subject  of  slavery  is  historic  and  fixed  his  opinion 
upon  that  matter  forever.  He  was  the  owner  of  a  plantation  and 
many  slaves  and  these  he  resolved  to  liberate.  He  visited  the  West 
in  1815  to  select  a  place  for  his  future  abode  and  where  he  might 
take  his  slaves  and  liberate  them.  He  selected  Illinois,  but  before  he 
could  effect  that  object  he  was  sent  by  President  Madison  to  Russia 
to  settle  a  difficulty  which  had  arisen  between,  the  Czar  and  our 
American  Consul.  The  trouble  grew  out  of  the  conduct  of  the 
Russian  Minister  at  Washington  who  had  misrepresented  matters 
there  to  the  Czar,  but  when  he  became  aware  of  the  facts  offered 
to  make  proper  amends,  even  to  sending  the  offending  minister  to 
Siberia. 

Mr.  Coles,  after  having  finished  the  business  which  he  was  sent 
abroad  to  transact,  returned  by  way  of  Berlin  and  Paris,  where  lie 
was  presented  to  Louis  XVIII  by  Mr.  Gallatin  and  there  he  met 
La  Fayette. 

In  1819,  he  removed  to  Edwardsville  in  this  State,  after  having 
liberated  his  slaves  on  their  voyage  down  the  Ohio  river.  After 
his  arrival  at  Edwardsville,  for  the  better  protection  of  the  freed- 
men,  and  on  the  advice  of  the  Hon.  Daniel  P.  Cook,  one  of  the 
best  lawyers  of  the  State,  he  gave  separate  papers  of  manumission 


OFtt-U**8 


52  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

to  all  his  former  slaves.  At  this  time  neither  Governor  Coles  nor 
Mr.  Cook  knew  anything  about  a  law  of  the  State  that  had  been 
previously  passed,  but  which  was  not  promulgated  till  several 
months  afterward.  -This  law  prohibited  any  person  from  bringing 
into  the  State  any  negroes  for  the  purpose  of  emancipation  unless 
he  should  give  bonds  in  the  penalty  of  one  thousand  dollars,  that 
the  negro  would  not  become  a  countv  charge:  and  that  if  the  eman- 

o  «/•  o     j 

cipator  neglected  to  give  this  bond,  he  should  forfeit  and  pay  the 
sum  of  two  hundred  dollars  for  every  negro  emancipated.  Gov- 
ernor Coles  had,  as  we  have  said,  emancipated  all  his  slaves  long 
before  they  reached  Illinois,  but  had  given  them  certificates  of 
manumission  after  his  arrival  at  Edwardsville.  This  afforded  a 
fine  opportunity  for  the  pro-slavery  party  to  harass  and  annoy 
him  on  the  ground  of  a  technical  violation  of  the  law.  Conse- 
quently proceedings  were  instituted  against  him  in  the  name  of  the 
County  of  Madison  and  the  writ  was  returnable  at  the  March 
term  of  the  Circuit  Court  at  Edwardsville,  1824.  John  Reynolds 
was  the  presiding  judge  and  after  a  considerable  delay,  every 
special  plea  having  been  ignored,  the  case  came  to  trial  before  a 
jury  on  the  plea  of  nil  debet  and  resulted  in  their  returning  a  ver- 
dict against  him  for  $2,000.  It  appeared  on  the  trial  that  three  of 
the  negroes  had  died  before  the  commencement  of  the  suit,  but  the 
judge  held  that  that  made  no  difference;  that  a  grave  offense  had 
been  committed  and  he  must  suffer  the  consequences.  The  late 
Elihu  Washburne  in  his  very  interesting  and  valuable  biography  of 
Governor  Coles,  says,  among  other  things :  "  From  a  bill  of  excep- 
tions taken  during  the  trial  and  spread  upon  the  records  of  the 
court  it  appears  that  the  defendant,  Coles,  offered  to  give  in  evidence 
and  prove  to  the  jury  that  three  of  the  negroes  of  the  plaintiff  had 
departed  this  life  before  the  commencement  of  the  suit;  but  the 
astute  judge  would  not  permit  the  testimony  to  be  given,  thus  prac- 
tically deciding  that  it  was  necessary  to  hold  the  county  harmless 
from  the  support  of  dead  men.  The  defendant  then  offered  to 
prove  by  Joseph  Conway,  the  clerk  of  the  County  Commissioners' 
Court,  that  the  defendant  had  never  been  notified  or  required  to 
give  bond,  but  the  court  would  not  permit  such  evidence  to  be 
given.  The  defendant  then  further  offered  to  prove  by  Daniel  P. 
Cook,  the  attorney  under  whose  advice  he  acted,  the  conversation 
he  had  with  him  before  the  date  of  manumission,  and  that  he,  Cook 
advised  the  giving  of  such  certificate  in  order  to  protect  the 


GOVERNOR  COLES  AND  HIS  IMMEDIATE  FRIENDS.  53 

negroes  and  to  'enable  them  to  live  themselves;'  and  also  to 
prove  by  said  Cook  all  the  circumstances  and  conversation  between 
said  witness  and  defendant,  which  induced  and  led  to  the  execu- 
tion of  said  certificate,  all  of  which  was  rejected." 

The  certificate  which  Mr.  Coles  gave,  was  in  the  following 
words  and  figures,  to-wit :  "  Whereas  my  father,  the  late  John 
Coles,  of  Albemarle,  in  the  State  of  Virginia,  did,  in  his  last  will 
and  testament,  give  and  bequeath  to  me  certain  negro  slaves,  among 
others,  Robert  Crawford  and  his  sister,  Polly  Crawford  ;  the  said 
Robert  Crawford  being  a  mulatto  about  five  feet  seven  inches  high 
and  now  about  twenty-seven  years  of  age;  and  the  said  Polly  being 
a  mulatto  woman  about  five  feet  one  inch  high,  and  now  about  six- 
teen or  seventeen  years  of  age : — 

"  And  whereas  I  do  not  believe  that  man  can  have  a  right  of  prop- 
erty in  his  fellowman,  but  on  the  contrary,  that  all  mankind  are 
endowed  by  nature  with  equal  rights,  I  do,  therefore,  by  these 
presents,  restore  to  the  said  Robert  and  his  sister  Polly,  that  inalien- 
able liberty  of  which  they  have  been  deprived.  And  I  do  hereby 
renounce  for  myself  and  my  heirs  forever,  all  claim  of  every 
description  whatever  to  them  and  their  services,  and  I  do  hereby 
emancipate  and  make  free  the  said  Robert  Crawford  and  his  sister 
Polly  Crawford.  In  testimony  whereof  the  said  Cole  set  his  hand 
and  seal  on  the  19th  day  of  July,  1819." 

This  act  of  emancipation,  executed  by  Governor  Coles  and  spread 
upon  the  records  of  the  court,  stands  out  to  his  immortal  honor  and 
makes  more  conspicuous  the  infamy  of  his  persecutors. 

The  motion  for  a  new  trial,  which  had  been  made  in  the  case  at 
the  September  term,  1824,  was  not  decided  at  that  term,  and  the 
case  went  over  to  the  March  term,  1835.  At  this  term  of  the 
court,  Judge  Samuel  McRoberts  presided.  He  was  a  hard-hearted 
and  most  unmerciful  judge.  The  motion  for  anew  trial  in  the  case 
which  he  found  undecided,  was  promptly  overruled. 

Between  the  term  of  the  court  in  September,  1824,  and  the 
March  term,  1825,  the  Legislature  (in  January,  1825,)  passed  an  act 
releasing  all  penalties  incurred  under  the  act  of  1819  (including 
those  sued  for),  upon  which  Coles  was  prosecuted.  The  law  required 
as  conditions  precedent  to  the  release  of  the  penalties,  the  execution 
of  a  bond  that  the  negroes  should  not  become  a  charge  upon  any 
county  in  the  State,  and  that  all  the  costs  of  the  suit  and  damages 
should  be  paid.  To  enable  the  defendant  to  take  advantage  of  this 


54  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

act,  at  the  June  term  it  was  moved  to  set  aside  the  verdict  and  judg- 
ment to  enable  him  to  plead  puis  darien  continuance. 

McRoberts  proved  equal  to  this  last  phase  of  the  case;  he 
overruled  the  motion  for  a  new  trial  and  rejected'  the  plea,  holding 
that  the  Legislature  could  not  make  a  law  to  bar  the  recovery  of 
the  penalty  in  the  case.  The  judge  was  not  able  to  prevent  the 
defendant  from  taking  an  appeal  to  the  Supreme  Court  of  the 
State.  This  appeal  was  taken  and  heard  at  the  June  term  of  the 
court  at  Vandalia,  1826. 

The  judgment  of  the  Circuit  Court  was  reversed  and  the  cause 
remanded  with  directions  to  receive  the  defendant's  plea.  Chief 
Justice  Wilson  gave  an  able  and  elaborate  opinion.  The  case  is 
fully  reported  in  Breese's  Reports,  page  115,  and  is  entitled,  Coles, 
plaintiff  in  error,  versus  The  County  of  Madison,  defendant  in 
error. 

The  case  was  argued  in  the  Supreme  Court  by  Henry 
Starr  for  Coles,  and  Turney  &  Reynolds  for  the  county  of  Madi- 
son. Henry  Starr  was  at  this  time  residing  at  Edwardsville  and 
one  of  the  best  lawyers  in  the  State.  He  was  a  strong  personal 
and  political  friend  of  Coles  and  took  a  deep  interest  in  this  case. 
After  being  several  years  at  Edwardsville,  he  returned  to  Cincin- 
nati, where  he  attained  great  eminence  in  his  profession. 

This  persecution  did  not  end  here  but  a  number  of  libel  suits 
were  instituted  against  him  for  his  just  criticisms  on  the  scandalous 
conduct  of  the  judge  who  tried  the  case  against  him  for  freeing  his 
slaves,  but  he  finally  triumphed  over  all  his  enemies  and  his  course 
and  conduct  were  fully  vindicated  and  his  character  has  grown 
brighter  and  brighter  with  each  revolving  year.  The  tribute  which 
Mr.  Washburne  has  paid  him  in  his  "  Sketch  of  Edward  Coles  "  is 
worthy  of  all  praise.  He  died  at  his  residence  in  Philadelphia,  July 
7,  1868.  We  regard  Mr.  Coles  like  John  the  Forerunner,  in  his 
course  and  career,  and  we  have  no  doubt  he  had  more  or  less  influence 
upon  the  life  and  destiny  of  the  immortal  Lincoln,  who  was  thor- 
oughly acquainted  with  his  persecutions,  his  sacrifices  and  his  mar- 
tyrdom in  endeavoring  to  make  Illinois  a  free  State. 

Judge  Gillespie,  in  a  letter  to  Mr.  Washburne,  dated  Edwards- 
ville, February  28,  1881,  speaks  of  Governor  Coles  as  follows:  "  I 
knew  the  governor  well.  He  lived  in  this  place  while  lie  was 
a  citizen  of  Illinois.  He  was  a  remarkable  man,  and  devoted  him- 
self to  the  propagation  of  the  sentiments  of  freedom.  He  was  the 


GOVERNOR  COLES  AND  HIS  IMMEDIATE  FRIENDS.  OO 

most  unrelenting  foe  to  slavery  I  ever  knew.  His  time,  money, 
everything  belonging  to' him,  was  expended  in  the  cause  so  dear  to 
ln's  heart.  He  brought  his  slaves  here  from  Virginia  and  liberated 
them,  gave  to  each  head  of  a  family  a  tract  of  land,  within  four 
miles  of  this  place,  where  they  settled  and  lived  for  many  years. 
He  was  unmarried  while  he  lived  in  Illinois,  and  when  in  Edwards- 
ville  boarded  in  the  family  of  James  Mason.  His  character  was 
without  spot  or  blemish  in  all  the  walks  of  life." 

Judge  Caton,  who  was  for  many  years  a  circuit  judge  and  one 
of  the  Supreme  judges  of  the  State,  a  man  who  is  revered  by  every 
one  who  knows  him  as  one  of  the  earliest  settlers  of  Chicago,  in  a 
great  argument  made  by  him  in  1881,  in  the  United  States  Circuit 
Court,  at  Chicago,  against  the  repudiation  of  certain  bonds  issued 
by  the  city  of  Ottawa,  said:  "  In  closing  this  reference  to  the  past 
of  our  State,  allow  me  to  say  that  Illinois  has  produced  three  great 
men,  whose  conspicuous  services  will  render  their  names  immortal, 
aiid  which  should  be  commemorated  by  enduring  monuments,  and 
to  whom  we  owe  a  debt  of  gratitude  that  can  never  be  paid. 

The  first  was  Edward  Coles,  who  was  governor  of  the  State  in 
1824,  and  who  saved  the  State  from  the  black  curse  of  African 
slavery,  then  and  forever.  The  second  was  Thomas  Ford,  who  was 
governor  in  1842,  and  who  saved  the  State  from  the  scarcely  less 
blighting  curse  of  repudiation;  and  the  third  was  Abraham  Lincoln, 
who  saved  the  Union  from  dismemberment  and  the  Nation  from 
destruction.  Not  alone,  either  of  them  ;  for  all  were  assisted  and 
supported  by  other  great  men  whose  names  should  be  scarcely  less 
honored;  but  they  were  the  great  leaders  in  these  great  labors,  whose 
talents  and  whose  integrity  led  the  people  to  these  great  accomplish- 
ments. In  all  time  to  come  posterity  should  bow  its  head  in  grati- 
tude whenever  either  of  these  names  should  be  spoken." 

His  public  career  in  the  State  of  Illinois  was  practically  closed 
in  1826,  when,  on  the  5th  day  of  December  of  that  year,  he  sent  his 
valedictory  message  to  the  Legislature,  and  soon  after  retired  from 
office.  This  message  was  mainly  devoted  to  the  affairs  of  the  State. 
But  in  it  he  made  a  most  touching  allusion  to  the  deaths  of  Thomas 
Jefferson  and  John  Adams,  which  occurred  simultaneously,  on  the 
4th  of  July  preceding,  "  thus  sanctioning  by  their  deaths  a  day  ren- 
dered glorious  by  the  most  important  event  of  their  lives  and  in  the 
history  of  their  country."  To  Mr.  Jefferson,  to  whom  he  was  most 
tenderly  attached  by  ties  of  sympathy  and  friendship,  he  paid  a 


56  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

most  eloquent  tribute,  describing  him  as  a  "sage  and  a  philanthro- 
pist, as  a  statesman  and  a  patriot,  the  author  of  the  Declaration  of 
Independence,  the  great  political  reformer  to  whose  strong,  bold 
and  original  genius  we  are,  in  a  great  degree,  indebted  for  our  civil 
and  religious  freedom,  and  for  our  correct  understanding  of  the 
rights  of  men  and  of  nations. 

In  closing,  he  earnestly  appealed  to  the  General  Assembly  to 
repeal  the  "  Black  Code,"  which  related  to  the  servitude  of  the 
blacks  and  "indentured  servants;"  in  order,  as  he  said,  to  "make 
the  laws  in  relation  to  that  unfortunate  class  of  our  fellow-beings,  the 
descendants  of  Africa,  less  repugnant  to  our  political  institutions 
and  local  situation;"  to  do  which  "it  is  requisite  that  provision 
should  be  made,  not  only  for  loosening  the  fetters  of  servitude,  but 
for  the  security  and  protection  of  free  persons  of  color.  It  is  also 
indispensable  that  the  law  should  be  radically  altered,  and,  so  far 
from  considering  every  colored  person  a  slave  unless  he  can  procure 
written  evidence  of  his  freedom  in  Illinois,  every  man  should  be 
presumed  free  until  the  contrary  is  made  to  appear." 

It  will  scarcely  be  believed  that  these  laws,  to  which  Governor 
Coles  refers,  and  known,  as  we  have  said,  as  the  "  Black  Code," 
actually  remained  on  the  statute  books  of  this  State  for  more  than 
a  quarter  of  a  century  afterward,  and  were  not  repealed  until  the 
year  1865. 

On  the  28th  of  November,  1833,  he  was  married  at  Philadelphia 
by  Bishop  De  Lancey,  to  Miss  Sally  Logan  Roberts,  a  daughter  of 
Hugh  Roberts,  a  descendant  of  Hugh  Roberts,  of  Peullyn,  Wales, 
who  came  to  this  country  with  William  Penn  in  1682.  Possessed 
of  an  ample  fortune,  his  private  life  seems  to  have  brought  him 
every  charm,  and  surrounded  him  with  every  happiness.  Of  a 
very  happy,  bright  and  cheerful  disposition,  he  entered  sympathet- 
ically into  the  pleasures  of  all,  and  promoted  in  every  possible  way 
the  happiness  of  all.  He  was  an  affectionate  husband,  a  devoted 
father  and  a  kind  friend. 

Governor  Coles  was  a  very  little  less  than  six  feet  in  height,  of 
a  slender  build,  and  strongly  marked  features.  His  eyes  were 
brilliant,  and  his  countenance — particularly  when  lighted  up  by  a 
smile — was  one  of  rare  beauty.  He  died  in  Philadelphia  at  the 
ripe  old  age  of  eighty-two,  July  7,  1868,  and  lies  buried  in  that 
beautiful  resting-place  of  the  dead  near  the  city  known  as  the 
"  Woodland." 


GOVERNOR  COLES  AND  HIS  IMMEDIATE  FRIENDS.  57 

COL.  WILLIAM  S.   HAMILTON. 

During  Governor  Coles'  administration  was  the  visit  of  Lafay- 
ette to  Illinois  in  1825.  In  the  month  of  December  previous,  the 
Legislature  of  the  State  had  extended  to  the  General  a  most  cordial 
and  pressing  invitation  to  visit  Illinois,  and  as  Lafayette  came  up 
the  Mississippi  river  from  New  Orleans,  Governor  Coles,  who  had 
extended  the  invitation  to  him  on  behalf  of  the  State,  couched  in 
the  most  respectful  and  cordial  language,  sent  forward  his  aid-de- 
camps to  meet  him  at  St.  Louis  and  accompany  him  to  the  State, 
with  a  letter  in  his  own  hand  to  this  effect: 

EDWAKDSVILLE,  April  25,  1825. 

DEAR  Sra: — This  will  be  handed  to  you  by  my  friend  and  aid- 
de-camps,  Col.  William  Schuyler  Hamilton,  whom  I  take  pleasure  in 
introducing  to  you  as  the  son  of  your  old  and  particular  friend, 
Gen.  Alexander  Hamilton.  As  it  is  not  known  when  you  will  arrive 
at  St.  Louis  or  what  will  be  your  intended  route  from  thence,  Col. 
Hamilton  is  posted  there  for  the  purpose  of  waiting  on  you  as  soon 
as  you  shall  arrive  and  ascertaining  from  you  and  making  known  to 
me  by  what  route  you  propose  to  return  to  the  eastward  and  when 
and  where  it  will  be  most  agreeable  for  you  to  afford  me  the  hap- 
piness of  seeing  you  and  welcoming  you  to  Illinois. 

I  am,  with  the  greatest  respect  and  esteem,  your  devoted  friend, 

EDWARD  COLES. 
GENERAL  LAFAYETTE. 

This  Col.  William  Schuyler  Hamilton  is  worth  remembering, 
and  is  deserving  of  more  than  a  passing  tribute  owing  to  more 
reasons  than  one.  He  was  the  son  of  the  immortal  Alexander 
Hamilton,  and  his  real  name  was  William  Stephen  Hamilton  and 
not  William  Schuyler,  as  Governor  Coles  calls  him.  He  lived  in 
the  State  of  Illinois  during  the  administration  of  Governor  Coles, 
was  appointed  by  him  his  aid-de-camps,  with  the  rank  of  colonel,  and 
performed  all  his  duties  with  great  intelligence,  dignity  and  decorum. 
He  was  born  in  New  York,  August  4,  1797,  and  was  admitted  to 
the  West  Point  Academy  in  1814  and  resigned  in  1817.  He  left 
his  home  in  New  York  and  settled  at  an  early  day  in  Sangamon 
County,  Illinois.  He  was  United  States  deputy  surveyor  of  the 
public  lands,  and  in  that  capacity  surveyed  the  township  in  which 
Springfield  now  stands.  In  1824  he  was  elected  a  member  of  the 
House  of  Representatives  from  Sangamon  County.  In  1827  he 
removed  to  the  "Fever  River  Lead  Mines"  and  commenced  mining 


58  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

for  lead  ore  at  a  point  soon  known  as  "  Hamilton's  Diggings,"  now 
Wiota,  in  Lafayette  county,  "Wisconsin.  Hon.  Elihu  Washburne, 
in  referring  to  him,  says:  "I  knew  Colonel  Hamilton  well  from 
1841  to  1849,  when  he  emigrated  to  California.  He  occupied  a 
prominent  position  in  Southwestern  Wisconsin  and  was  a  well  known 
whig  politician.  He  was  a  member  of  the  House  of  Representa- 
tives in  the  Territorial  Legislature  of  Wisconsin  in  1842-3.  He 
died  in  Sacramento,  California,  October  9,  1850.  For  nineteen 
years  neither  stone  nor  slab  marked  the  spot  where  reposed  his 
ashes.  When  the  careless  grave  digger  threw  his  shovelfuls  of 
earth  on  his  coffin,  little  could  he  have  thought  he  was  covering  the 
remains  of  a  son  of  Alexander  Hamilton,  in  my  judgment  the  great- 
est of  all  American  statesmen.  Colonel  Hamilton  was  brave,  gen- 
erous, hospitable  and  humane,  and  unusually  quick  in  perception 
and  decided  in  action."  In  1879  Cyrus  Woodman,  Esq.,  of  Cam- 
bridge, Massachusetts,  who  was  long  a  resident  of  Mineral  Point, 
Wisconsin,  and  a  devoted  friend  of  Colonel  Hamilton,  purchased  a 
lot  in  the  cemetery  of  Sacramento,  and  marked  the  grave  with 
granite  head  and  foot-stones.  On  the  polished  surface  of  the  head- 
stone he  placed  the  following  inscription: 

COLONEL  WM.  S.  HAMILTON, 
SON  OF 

GENERAL  ALEXANDER  HAMILTON, 

WAS  BORN  IN  NEW  YORK, 

AUGUST  4,  1797. 

HE  WAS  AN  EARLY  SETTLER  AND  PROMINENT  CITIZEN 

OF  WISCONSIN, 

COMING  TO  CALIFORNIA   IN  1849. 
HE  DIED  HERE  OCTOBER  9,  1850. 

IN  SIZE  AND  FEATURE,  IN  TALENT  AND  CHARACTER, 
HE  MUCH  RESEMBLED  HIS  ILLUSTRIOUS 

FATHER. 
A  FRIEND  ERECTS   THIS   STONE. 

JUDGE  SAMUEL   D.  LOCEWOOD. 

Judge  Samuel  D.  Lockwood  was  a  man  whose  life  and  public 
services  are  worthy  of  commemoration,  and  he  will  take  rank  next 
to  Governor  Coles.  He  came  to  the  State  in  1818,  and  died  in  1874. 
He  was  elected  state's  attorney  in  1821 — was  appointed  Secretary 
of  State  by  Governor  Coles  in  1822;  receiver  of  public  moneys  by 


CJOLES  AND  HIS  IMMEDIATE  FRIENDS. 

President  Monroe  in  1823;  in  1824  was  elected  one  of  the  judges 
of  the  Supreme  Court  and  remained  in  that  position  till  the  adop- 
tion of  the  Constitution  in  1848,  when  he  was  appointed  trustee  of 
the  Illinois  Central  Railroad  Company. 

He  was  born  in  Poundridge,  Westchester  Co.,  N.  Y.,  Aug.  2, 
1789,  and  died  at  Batavia,  April  23,  1874,  in  the  eighty-fifth  year  of 
his  age.  The  impress  that  he  left  upon  the  State  and  the  age  in 
which  he  lived,  we  trust,  will  not  soon  be  forgotten. 

The  part  that  he  took  in  public  affairs  in  the  founding  and  estab- 
lishing charitable  and  public  institutions  has  identified  .his  name 
with  everything  that  is  noble  and  good.  "When  the  State  was  in 
danger  of  becoming  a  slave  State,  he  threw  into  the  contest  his  soul, 
his  conscience,  his  money  and  estate,  and  in  connection  with  Coles, 
William  H.  Brown,  and  scores  of  others,  fought  the  good  fight  and 
won  the  victory. 

He  was  a  great  lawyer,  judge  and  jurist,  and  possessed  a  char- 
acter worthy  of  imitation.  He  was  the  author  of  the  Criminal 
Code  of  the  State  in  1825,  and  considering  the  time  and  occasion, 
and  his  want  of  all  exterior  aids  in  the  shape  of  books,  it  was  and 
is  a  masterpiece.  It  is  a  curious  fact  that  the  Chicago  anarchists 
were  tried  under  a  provision  of  that  Code  entitled  "Accesso- 
ries to  Crime,"  as  follows  :  "  An  accessory,  is  he  or  she  who  stands 
by  and  aids,  abets  or  assists;  or  who,  not  being  present  aid  ing,  abet- 
ting or  assisting,  hath  advised  and  encouraged  the  perpetration  of 
the  crime. 

"  He  or  she  who  thus  aids,  abets  or  assists,  advises  or  encourages, 
shall  be  deemed  and  considered  as  principal,  and  punished  accord- 
ingly." 

Of  Judge  Lockwood,  Dr.  Edward  Beecher,  who  was  president 
of  Illinois  College  for  fourteen  years,  says:  "  I  can  not  enter  into 
any  details  of  the  life  of  Judge  Lockwood,  nor  of  his  legal  services  to 
the  community.  But  I  can  say  that  during  an  acquaintance  of  over 
twenty  years,  of  which  fourteen  associated  me  with  him  as  a  trustee 
of  Illinois  College,  I  have  seen  in  him  incorruptible  integrity  and 
wisdom  as  a  counsellor  in  all  things,  with  an  unwavering  devotion  to 
sound  principles  and  the  public  good  in  every  position  he  held. 

"His  life,  in  all  its  relations,  public  and  social,  was  spotless  and  I 
think  he  had  the  entire  confidence  and  warm  affection  of  the  whole 
community  in  which  he  lived. 


60  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

"  His  services  to  the  cause  of  liberty  in  the  early  history  of  the 
State  deserves  a  warm  recognition." 

Dr.  T.  M.  Post,  of  St.  Louis,  himself  renowned  as  a  minister  of 
the  Gospel,  as  a  scholar  and  a  statesman,  says  :  "  There  was  in  his 
character  a  rare  blending  of  elements — a  modesty,  gentleness  and 
delicacy  well  nigh  feminine,  and  great  general  kindness,  combined 
with  intrepid  firmness  of  principle,  a  large  practical  wisdom,  distin- 
guished judicial  ability  and  integrity,  and  a  personal  purity  and 
honor  as  stainless  as  a  star.  He  was  a  most  beneficent  power  in 
founding  and  shaping  the  early  history  and  civilization  of  Illinois." 

There  was  heroism  in  those  men  who  stayed  the  tide  of  incoming 
barbarism  and  opened  the  springs  of  a  high 'civilization — who  kept 
out  slavery  with  its. three-fold  curse  on  master,  servant  and  soil,  and 
established  freedom  with  its  three-fold  blessing  on  mind,  body  and 
estate ;  who  planted  the  seed,  and  cherished  to  a  vigorous  growth 
our  educational,  benevolent  and  Christian  institutions,  adorning  the 
prairie  with  schoolhouses,  asylums  and  churches.  The  real  history 
of  Illinois  must  be  found  in  the  lives  of  her  eminent  men. 

MORRIS    BIRKBECK. 

Next  to  Governor  Coles,  Lockwood  and  Mr.  Peck,  the  man  who 
did  the  most  in  arousing  and  forming  public  opinion  to  the  dan- 
gers of  making  Illinois  a  sla've  State  was  Morris  Birkbeck  of 
Edwards  county.  He  was  an  Englishman  by  birth,  and  was  born  in 
"Wanborough,  England,  in  1763.  He  was  highly  educated,  possessed 
a  fine  library  and  was  renowned  for  his  scholarship  arid  high  classi- 
cal attainments.  He  had  met  Governor  Coles  on  his  visit  to  Eng- 
land a  number  of  years  before  his  advent  to  Illinois,  and,  probably 
through  his  influence,  had  emigrated  to  America  and  taken  up  his 
abode  in  Edwards  county,  where  he  founded  a  town  and  named  it 
after  his  native  town  in  England,  "Wanborough.  The  settlement 
was  soon  known  as  the  "English  Settlement"  and  is  a  romance 
in  itself  equal  in  interest  to  that  of  a  fairy  tale.  He  was  a  man  of 
great  experience  and  observation  which  he  had  improved  by  foreign 
travel;  and  he  had  prior  to  his  coming  to  this  country  written  a 
book  of  travels  entitled  "  Notes  of  a  Journey  through  France," 
which  had  attracted  the  attention  of  Thomas  Jefferson  and  was 
found  in  his  library  at  Monticello. 

He  is  the  author  also  of  the  well  known  works  entitled  "  Letters 
from  Illinois  "  and  %'  Notes  on  a  Journey  in  America."  His  views 
upon  the  subject  of  slavery  may  be  gathered  from  a  letter  dated 


GOVERNOR  COLES  AND  HIS  IMMEDIATE  FRIENDS.  61 

July  28,  1818.  written  to  a  friend  in  France,  in  which  he  says:  "  In 
passing  from  theory  to  practice  1  have  experienced  no  diminution  of 
my  love  for  freedom;  but  1  hate  tyranny  more  cordially  and  I  want 
language  to  express  the  loathing  I  feel  for  personal  slavery;  prac- 
ticed by  freemen  it  is  most  detestable.  It  is  the  leprosy  of  the 
United  States,  a  foul  blotch  which  more  or  less  contaminates  the 
entire  system  in  public  and  in  private,  from  the  president's  chair  to 
the  cabin  of  the  hunter." 

When  the  great  controversy  was  raging  over  the  question 
whether  Illinois  should  be  slave  or  free,  Mr.  Birkbeck  wrote  a  series 
of  letters  over  the  nom  de  plume  of  Jonathan  Freeman,  which 
were  widely  read  and  greatly  admired.  They  were  plainly  written 
but  were  full  of  facts  and  figures  and  captivated  all  who  read  them. 
He  was  most  bitterly  assaulted  by  the  pro-slavery  party  and 
denounced  as  a  "  foreign  emissary,"  an  '-exile,"  a  quaker  and  an 
infidel  of  the  worst  type,  to  exterminate  whom  would  be  doing  God's 
will.  He  deserves,  for  the  part  he  took  in  making  Illinois  a  free 
State,  immortal  honor,  and  his  memory  should  be  embalmed  in  brass 
and  marble.  He  was  drowned  while  crossing  a  small  stream  called 
Fox  river,  June  4,  1825.  His  body  was  taken  two  days  afterward 
to  New  Harmony,  Indiana,  and  buried  with  every  mark  of  respect 
and  affection.  Thus  perished  Morris  Birkbeck,  one  of  the  ablest 
and  most  celebrated  men  of  his  time  in  Illinois,  whose  influence 
wielded  in  the  cause  of  freedom  and  humanity,  should  always  be 
gratefully  remembered.  Associated  with  Mr.  Birkbeck  in  his  work 
of  establishing  the  English  colony  at  Wanborough  was  George 
Flower,  who  was  also  a  great  man  and  deserves  particular  mention. 
He  was  an  Englishman  by  birth,  and  was  born  in  Hertford,  the 
county  town  of  Hertfordshire,  twenty  miles  northeast  of  London. 
He  had  known  Birkbeck  in  his  youth,  had  traveled  with  him  over 
France  soon  after  the  fall  of  Napoleon,  and  from  France  southward 
to  the  shores  of  the  Mediterranean,  skirting  the  Pyrenees  and 
returning  thence  by  a  more  easterly  route  to  Paris. 

Birkbeck  dedicated  his  small  but  very  interesting  volume  enti- 
tled "Notes  on  a  Journey  through  France,"  etc.,  to  Mr.  Flower  in 
these  words: 
To  Mr.  George  Iflower,  of  Morden,  near  Hertford. 

DEAR  SIB: — Yon  were  my  agreeable  and  intelligent  fellow- 
traveler,  and  I  offer  you  this  little  volume  as  the  result  of  our 
joint  observations.  Your  faithful  friend, 

Wanborough,  Nov.  13,  1814.  M.  BIRKBECK. 


62  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

Flower  first  sailed  from  Liverpool  for  America  in  the  ship 
Robert  Burns  in  April,  1816,  and  was  fifty  days  in  crossing  the 
Atlantic.  He  traveled  on  horseback  across  the  Alleghanies  to  the 
far  West;  met  Gen.  Jackson  at  Nashville,  Tennessee,  and  return- 
ing East  visited  Jefferson  at  his  Poplar  Forest  estate,  to  whom  he  had 
letters'of  introduction  and  with  whom  he  stayed,  on  Jefferson's 
invitation,  for  several  months,  passing  the  winter  with  him.  There 
is  nothing  which  has  ever  been  written,  which  contains  such  a 
charming  picture  as  his  life-like  sketch  of  Mr.  Jefferson  in  the 
home  of  his  family  and  in  his  domestic  privacy,  as  he  saw  him  in 
1816. 

Mr.  Jefferson,  it  appears,  was  a  great  believer  in  land  and  his  large 
possessions  at  Monticello  did  not  seem  to  satisfy  him  and  he  pur- 
chased an  estate  in  Bedford  county,  which  he  called  Poplar  Forest, 
and  which  was  but  a  short  distance  east  of  Lynchburg.  Mr.  Flower 
was  a  man  of  rare  intelligence,  of  fine  literary  tastes,  and  extensive 
reading,  with  a  great  knowledge  of  men  and  things  in  Europe,  and 
Mr.  Jefferson  became  very  much  interested  in  him. 

Mr.  Flower  in  his  account  of  his  visit  to  Jefferson,  says:  ""We 
entered  the  State  of  Virginia  at  Abington.  1  found  Mr.  Jefferson 
at  his  Poplar  Forest  estate,  in  the  western  part  of  the  State  of 
Virginia.  His  house  was  built  after  the  fashion  of  a  French  chateau. 
Octagon  rooms,  floors  of  polished  oak,  lofty  ceilings,  large  mirrors, 
betokened  his  French  taste,  acquired  by  his  long  residence  in  France. 
Mr.  Jefferson's  figure  was  rather  majestic;  tall,  over  six  feet,  thin 
and  rather  high-shouldered;  manners  simple,  kind  and  courteous. 
His  dress  in  color  and  form  was  quaint  and  old-fashioned,  plain  and 
neat,  a  dark  pepper  and  salt  coat,  cut  in  the  old  quaker  fashion, 
with  a  single  row  of  large  metal  buttons,  knee-breeches,  gray 
worsted  stockings,  shoes  fastened  by  large  metal  buckles — such  was 
the  appearance  of  Jefferson  when  I  first  made  his  acquaintance  in 
1816.  His  two  granddaughters — Misses  Randolph — well  educated 
and  accomplished  ladies,  were  staying  with  him  at  the  time."  He 
was  delighted  with  the  conversations  of  Jefferson,  who  gave  him 
the  minor  history  of  events  before  only  known  to  him  generally  in 
published  records  and  publications  of  the  times.  While  here  he 
became  acquainted  with  the  Coles  family,  Isaac  Coles,  the  brother 
of  Governor  Coles,  being  Jefferson's  private  secretary.  His  sister, 
Miss  Coles,  had  just  been  married  to  Hon.  Andrew  Stevenson,  who 
was  afterward  minister  to  Great  Britain,  and  was  the  first  American, 


GOVEKNOK   COLES  AND  HIS  IMMEDIATE    FRIENDS.          60 

we  believe,  who  WPS  ever  voted  the  freedom  of  the  city  of  London. 
He  was  present  at  the  inauguration  of  James  Monroe  as  President 
of  the  United  States.  He  afterward  met  Edward  Coles  at  the 
house  of  Madison. 

A  short  time  after  this  he  joined  the  colony  of  Morris  Birkbeck 
and  went  West  with  him  and  located  at  the  English  colony  in 
Edwards  county.  The  story  of  his  life  is  as  thrilling  as  a  romance 
and  is  embodied  in  what  is  known  as  the  "  History  of  the  English 
Settlement  in  Edwards  County,"  published  at  the  expense  of  Levi 
Z.  Leiter,  and  constitutes  the  first  of  a  series  of  the  Chicago  His- 
torical publications.  He  and  his  wife  died  on  the  same  day  early 
in  January,  1862,  at  the  house  of  their  daughter,  Mrs.  Agniell,  at 
Grayville,  White  county,  Illinois.  Dr.  Barry  of  the  Chicago  His- 
torical Society,  in  a  just  tribute  to  his  great  and  exalted  worth,  says: 
"Born  in  Hertfordshire,  England,  in  affluent  circumstances,  after 
gaining  some  distinction  in  his  native  land  by  continental  travel  for 
the  benefit  of  British  husbandry,  he  came  to  America  in  1817 
(about  thirty  years  of  age)  as  the  associate  of  Morris  Birkbeck  in 
founding  the  English  colony  at  Albion,  Edwards  county,  in  Illi- 
nois." 

It  was  no  mere  sordid  impulse  that  moved  either  of  these  noble- 
hearted  men  in  their  scheme  of  colonization.  Republicans  from  deep- 
seated  sentiment  and  conviction,  the  great  American  Republic  drew 
them  hither  as  to  a  congenial  home,  and  here  they  jointly  estab- 
lished a  thrifty  and  successful  colony,  transplanting  on  our  virgin 
prairies  the  arts  and  improvements  of  the  old  mother  country. 
The  large  wealth  possessed  by  Mr.  Flower  gave  him  a  command- 
ing, a  responsible,  and  we  may  add,  a  laborious  position  in  the  new 
colony.  His  spacious  mansion  of  rare  extent  and  finish  in  a  new 
settlement  was  the  scene  of  frank  and  elegant  hospitality.  Strangers 
of  distinction  sought  it  from  afar.  Improved  husbandry,  with  the 
importation  of  the  finest  fleeces  of  England  and  Spain,  followed 
the  guiding  hand  of  the  master  mind.  The  calm  and  philosophic 
wisdom  of  Mr.  Flower,  united  witli  a  rare  benevolence,  has  left 
bright  traces  upon  our  western  history. 

In  the  eventful  strife  which  accompanied  the  daring  attempt  in 
1823,  to  legalize  African  slavery  in  Illinois,  no  one  enlisted  with  a 
truer  heroism  than  he.  We  of  the  present  day,  and  amidst  the 
dire  commotions  of  civil  war,  can  but  poorly  comprehend  the 
ferocity  and  the  gloomy  portents  of  that  struggle.  So  nearly 


64  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

balanced  were  the  contending  parties  of  the  State,  that  the  vote  of 
the  English  colony,  ever  true  to  the  instincts  of  freedom,  turned 
the  scale,  a  handful  of  sturdy  Britons  being  the  forlorn  hope  to 
stay  the  triumph  of  wrong  and  oppression,  whose  success  might 
have  sealed  forever,  the  doom  of  republican  and  constitutional 
liberty  in  America.  The  failure  of  that  nefarious  plot  against  our 
young  and  noble  State,  led  to  an  outburst  of  persecution  against 
free  negroes  and  their  humane  protectors,  transcending  even  the 
invidious  hostility  of  our  so-called  Black  Laws,  and  constitutional 
conventions. 

Mr.  Flower  was  one  of  that  class  of  men  whose  fine  insight,  large 
views  and  calm  force,  raised  him  above  all  claimants  to  popular 
favor.  In  his  early  maturity,  he  numbered  among  his  friends  and 
correspondents  such  personages  as  our  American  Jefferson,  Lafay- 
ette, and  the  Comte  de  Lasteyrie,  of  France,  Madame  O'Connor 
(the  daughter  of  Condorcet),  Ireland,  and  Cobbett,  of  England. 
By  these,  and  such  as  these,  his  superior  tone  of  mind  and  character 
was  held  in  true  esteem.  In  the  depths  of  our  yet  unfurrowed 
prairies,  and  amidst  the  struggle  and  hardship  of  a  new  settlement, 
a  mind  and  heart  like  his  might  fail  of  a  just  appreciation  by  his 
contemporaries.  This  sad  realization  he  doubtless  felt.  But  now 
that  he  has  passed  from  the  scenes  of  his  voluntary  exile,  let  it  not 
be  said  that  a  true  and  gifted  manhood  was  here  and  we  knew  it  not. 

There  are  those  now,  and  to  come,  who  will  keep  green  his 
memory,  and  take  pleasure  in  recovering  the  traces  of  a  noble  mind 
that  lived  and  thought  and  acted  only  for  human  good. 

That  his  teachings  and  example  bore  fruit  is  evidenced  by  the 
fact  that  the  records  of  the  Indiana  volunteers  show  that  Richard 
Flower  was  among  the  first  to  enlist  in  the  First  Indiana  Cavalry, 
at  Mount  Vernon,  Indiana,  on  the  breaking  out  of  the  rebellion,  and 
he  fell  in  the  battle  of  Fredericktown,  Missouri,  on  the  18th  of 
October,  1861. 

Daniel  P.  Cook,  who  was  at  this  period  a  young  and  rising 
statesman,  did  not  figure  in  the  great  contest  for  freedom  in  Illinois 
as  conspicuously  as  many  others,  but  he  acted  as  the  legal  adviser  of 
Governor  Coles  on  many  occasions  and  his  name  and  fame  are  closely 
identified  with  this  great  movement. 

In  1827  Hon.  Daniel  P.  Cook,  member  of  Congress  from  this 
State,  obtained  a  grant  of  land  in  aid  of  the  Illinois  and  Michigan 
Canal,  and  thus  obtained  the  title  of  "  Father  of  the  Illinois  and 


GOVERNOR    COLES  AND  HIS  IMMEDIATE    FRIENDS.          65 

Michigan  Canal."  At  that  time  this  project  was  wholly  a  Southern 
Illinois  enterprise,  and  Mr.  Cook  was  a  representative  from  that 
portion  of  the  State. 

He  was  a  member  of  Congress  commencing  with  the  second 
session  of  1819,  and  served  with  great  distinction  in  that  body  eight 
years.  He  was  elected  at  the  early  age  of  twenty-five,  served  eight 
years  and  died  when  only  thirty-three  years  old.  He  was  a  most 
remarkable  man,  possessed  of  great  foresight,  eloquence  and  sagac- 
ity and  was  the  compeer  of  Clay,  Calhoun,  Wirt,  Stevenson  and 
McDuffie.  He  was  chairman  of  the  important  committee  of  ways 
and  means  in  the  House,  during  his  last  term  of  service  and  bid 
fair  to  become  one  of  the  foremost  men  in  the  Nation.  He  was 
early  impressed  with  the  idea  of  improving  the  water  ways  of  our 
State  and  of  building  a  canal  from  the  Mississippi  river  to  Chicago. 

In  1824,  the  Legislature  of  the  State  passed  a  law  giving  to  a 
private  company  the  practical,  if  not  exclusive,  control  of  the  Illi- 
nois river  and  the  power  of  making  a  canal.  So  averse  was  he  to 
this,  that  he  left  his'seat  in  Congress,  came  home  to  Illinois,  pro- 
cured the  repeal  of  the  charter  and  then  procured  the  land  grant 
which  resulted  in  building  the  canal.  The  project  of  connecting 
the  waters  of  the  Mississippi  with  those  of  Lake  Michigan  was  agi- 
tated as  early  as  1814.  In  1818,  Governor  Bond  pressed  it  upon 
the  attention  of  the  first  Legislature,  then  sitting  at  Kaskaskia,  and 
Governor  Coles,  in  1822,  did  the  same. 

In  1821,  the  Legislature  appropriated  $10,000  for  the  survey 
of  the  route  of  the  Illinois  and  Michigan  Canal.  In  1823,  canal 
commissioners  were  appointed  and  a  tour  of  inspection  was  made 
under  Col.  J.  Post  and  R.  Paul,  of  Missouri.  The  work  was  com- 
menced in  1836,  and  completed  in  1845. 

Daniel  P.  Cook  was  one  of  the  most  enterprising  and  far-seeing 
statesmen  of  his  time.  The  State  of  Illinois  and  the  county  of  Cook 
owe  him  a  debt  of  gratitude  which  can  never  be  repaid.  He 
deserves  at  least  a  monument  to  his  memory  and  it  should  be 
erected  at  no  distant  day. 


CHAPTER  XY. 

The  Great  Convention  Struggle  of  1823-4  to  Make  Illinois 

a  Slave  State. 

SIX  years  after  the  Constitution  of  1818  had  been  adopted  and 
before  even  the  provisions  had  become  known  to  the  scattered 
population  of  the  State  a  struggle  commenced  for  supremacy 
between  the  pro-slavery  inhabitants  and  those  who  were  in  favor 
of  forever  keeping  the  State  free  such  as  has  never  been  wit- 
nessed in  this  country,  except  perhaps  in  regard  to  Kansas,  nearly 
forty  years  afterward.  It  was  a  gigantic  conspiracy  which  was 
entered  into  by  the  leading  office-holders  and  aspirants  for  office 
in  the  State  backed  by  parties  in  Kentucky,  Tennessee  and  Missouri. 
Missouri  had  just  been  admitted  into  the  Union  under  and  by 
virtue  of  what  is  known  as  the  Missouri  Compromise,  and  the  slave- 
holding  population  and  their  sympathizers  resolved  to  keep  com- 
pany with  their  neighbors. 

The  times  were  hard.  The  farmer  could  find  no  market  for  his 
abundant  crops.  Manufactures  languished,  improvements  were  at  a 
standstill,  and  the  mechanic  was  without  work.  The  country  was 
cursed  by  a  fluctuating  and  irredeemable  paper  currency,  which  had 
driven  all  real  money  out  of  circulation. 

The  flow  of  immigration  to  the  State  had  in  a  great  measure 
ceased,  but  a  great  emigration  passed  through  the  State  to  Missouri. 
Great  numbers  of  well-to-do  emigrants  from  the  slave  States,  tak- 
ing with  them  their  slaves,  were  then  leaving  their  homes  to  find 
new  ones  west  of  the  Mississippi.  When  passing  through  Illinois  to 
their  destination,  with  their  well  equipped  emigrant  wagons,  drawn 
by  splendid  horses,  with  their  retinue  of  slaves,  and  with  all  the 
lordly  airs  of  that  class  of  slave-holders,  they  avowed  that  their 
only  reason  for  not  settling  in  Illinois,  was  that  they  could  not  hold 
their  slaves.  This  fact  had  a  very  great  influence,  particularly  in 
that  part  of  the  State  through  which  the  emigration  passed,  and 
people  denounced  the  unwise  provision  of  the  Constitution  pro- 
hibiting slavery  and  thus  preventing  a  great  influx  of  population  to 

add  wealth  to  the  State. 

(66) 


ATTEMPT  TO  MAKE    ILLINOIS  A  SLAVE  STATE.  67 

During  the  years  1823-4  occurred  the  great  controversy  over 
the  question — "  Shall  a  convention  be  called  to  form  a  new  State  Con- 
stitution"— it  being  well  understood  that  if  the  convention  was 
called,  Illinois  would  become  a  slave  State,  if  it  was  not,  it  would 
remain  a  free  State. 

The  proposition  was  beaten  by  a  considerable  majority  after  one 
of  the  most  exciting  campaigns  ever  held  within  our  borders. 

The  success  which  had  attended  the  admission  of  Missouri  into 
the  Union,  under  and  by  virtue  of  the  famous  compromise  bill, 
encouraged  the  pro-slavery  party  in  this  State  to  believe  that  if  a 
convention  were  called  to  revise  and  amend  the  Constitution,  they 
could  make  Illinois  a  slave  State,  and  every  effort  was  put  forth  to 
accomplish  that  object.  The  Constitution  had,  it  must  be  recol- 
lected, been  in  operation  only  about  four  years,  and  the  only  thing 
that  was  ever  particularly  complained  of  was  the  restrictions  on  the 
appointing  power  of  the  governor  and  the  Council  of  Revision. 
But  this  made  no  difference;  the  fiat  went  forth  that  Illinois  must 
be  made  a  slave  State  in  order  to  keep  pace  with  Missouri,  and  the 
struggle  commenced. 

William  H.  Brown,  in  recounting  his  reminiscences  of  the 
period,  says:  "Among  those  who  supported  the  convention,  as  a 
.general  thing,  were  the  rank  and  file  of  the  politicians  of  the  State. 
Of  these  must  be  excepted  a  few  such  men  as  Daniel  P.  Cook,  and 
Governor  Edwards,  even,  who,  according  to  my  recollection,  was 
absent  from  the  State  and  took  no  part  in  the  controversy.  These 
politicians  were  dangerous  opponents,  because,  long  engaged  in  the 
struggles  for  power  and  office,  they  were  practiced  leaders  and 
familiar  with  all  the  means  and  appliances  for  success  with  the 
people.  With  them  were  the  men  of  wrecked  fortunes  and  loose 
principles,  as  also  the  young,  aspiring  and  ambitious,  misled  by  the 
loud  boasting  and  extravagant  calculations  of  the  party,  supposing 
that  the  great  majority  was  upon  that  side.  The  French  population 
also,  to  secure  more  perfectly  their  supposed  rights  to  the  people  of 
color  then  held  by  them  in  bondage,  were  the  natural  allies  of  the 
conventionists  and  desirous  of  their  success.  To  these  must  be 
added,  with  very  few  exception?,  the  poor  whites  from  the  slave 
States,  the  most  vociferous  and  malignant  of  all.  Their  poverty 
and  shiftlessness  precluded  the  possibility  of  their  becoming  slave- 
holders if  the  Constitution  should  be  changed.  Their  toil  and  zeal 
could  only  be  accounted  for  upon  the  supposition  that  they  desired 


68 

a  class  of  humanity  among  us  more  debased  and  ignorant  than  them- 
selves." 

The  Constitution  of  Illinois  made  it  the  duty  of  the  General 
Assembly  whenever  two-thirds  of  its  members  should  think  it 
necessary  to  alter  or  amend  the  Constitution,  to  recommend  to  the 
electors  at  the  next  election  of  members  to  the  General  Assembly, 
to  vote  for  or  against  a  convention  for  such  purpose,  and  if  it  shall 
appear  that  a  majority  of  all  the  citizens  voted  for  a  convention, 
the  General  Assernbty  shall  at  their  next  session  call  one  to  be  held 
in  time  and  manner  specified  under  the  provision.  The  agitation  for 
a  convention  commenced  and  was  favored  by  every  pro-slavery 
elector  in  the  State. 

The  first  skirmish  occurred  in  the  General  Assembly  of  1820-21, 
when  Lockwood  was  elected  to  the  office  of  attorney-general. 

The  second  was  the  election  of  Edward  Coles  governor,  in 
August,  1822,  as  the  second  governor  of  the  State,  and  was  one  of 
the  most  wonderful  dramas  ever  enacted,  whether  State  or  National. 

The  convention  party  never  dreamed  of  any  other  result  than 
that  in  their  own  favor,  and  nominated  Chief  Justice  Joseph 
Phillips.  Some  opposition  having,  however,  developed  against  him, 
a  faction  nominated  Judge  Thomas  C.  Brown,  who  they  thought 
would  draw  largely  from  Coles,  but  in  this  they  were  mistaken,  and 
when  the  votes  were  counted  it  was  found  that  Coles  had  received 
2,810  votes;  Phillips,  2,760;  Brown,  2,543,  and  Moore,  a  fourth 
candidate,  522. 

This  gave  Coles  a  plurality  of  fifty-one  votes  over  Phillips,  and 
he  was  elected.  The  first  thing  that  Coles  did  was  to  appoint  Sam- 
uel D.  Lockwood  Secretary  of  State,  and  the  party  squared  for 
battle. 

On  the  convening  of  the  General  Assembly  it  was  found  that  in 
order  to  hold  ia  convention  to  revise  the  Constitution,  under  the  pro- 
visions of  the  Constitution  it  was  necessary  to  have  a  two-thirds 
vote,  and  they  were  lacking  one  vote  in  the  House.  At  first  it  was 
attempted  to  have  the  question  decided  by  joint  ballot,  but  as  it  was 
found  that  the  Constitution  required  that  the  act  calling  the  con- 
vention must  be  decided  by  a  two- thirds  majority  in  each  House, 
that  plan  was  abandoned  and  scoundrelism  was  resorted  to. 

A  man  by  the  name  of  Hanson  had  been  elected  to  the  House 
of  Representatives  from  Pike  county.  His  seat  was  contested  by 
a  man  by  the  name  of  Shaw.  Finding  Hanson  favorable  to  calling  a 


ATTEMPT  TO  MAKE  ILLINOIS  A  SLAVE  STATE.  69 

convention,  Shaw  was  ousted  of  his  seat  and  went  home.  This 
happened  very  early  in  the  session,  and  but  little  was  thought 
about  it.  It  was  after  a  time,  however,  discovered  that  Hanson 
would  not  vote  in  favor  of  a  convention  and  he  was  unseated  and 
Shaw  recalled.  This  gave  them  the  requisite  two-thirds  majority 
and  their  joy  knew  no  bounds.  They  indulged  in  the  most  shame- 
ful orgies  and  an  impromptu  jollification  was  gotten  up  not  only 
to  celebrate  their  hard-earned  victory  but  to  insult _and  degrade 
their  opponents. 

Governor  Ford  in  describing  this  affair  says:  "The  night  after 
this  resolution  passed,  the  convention  party  assembled  to  triumph 
in  a  great  carousal.  They  formed  themselves  into  a  noisy,  dis- 
orderly and  tumultuous  procession,  headed  by  Judge  Phillips, 
Judge  Smith,  Judge  Thomas  Reynolds,  late  governor  of  Missouri, 
and  Lieutenant-Governor  Kinuey,  followed  by  the  majority  of  the 
Legislature  and  the  hangers-on  and  rabble  about  the  seat  of  govern- 
ment; and  they  marched  with  the  blowing  of  tin  horns  and  the 
beating  of  drums  and  tin  pans  to  the  residence  of  Governor  Coles 
and  to  the  boarding  houses  of  their  principal  opponents  toward 
whom  they  manifested  their  contempt  And  displeasure  by  a  con- 
fused medley  of  groans,  waitings  and  lamentations.  Their  object 
was  to  intimidate  and  crush  all  opposition  at  once." 

Governor  John  Reynolds  characterized  the  proceeding  as  "  a 
wild  and  indecorous  proceeding  by  torch  light  and  liquor,"  and  in 
his  history  "My  Own  Times,"  says  that,  "this  proceeding  in  the 
General  Assembly  looked  revolutionary  and  was  condemned  by  all 
honest  and  reflecting  men.  This  outrage  was  a  death  blow  to  the 
convention." 

The  people  soon  took  fire  and  the  contest  commenced.  Each 
anti-convention  member  of  the  General  Assembly  contributed  fifty 
dollars  to  a  common  fund.  Governor  Coles  gave  his  whole  four 
years  salary,  amounting  to  $4,000,  to  the  work.  Lockwood,  in 
order  to  earn  money  to  aid  in  the  work,  resigned  the  office  of  Secre- 
tary of  State  with  its  meagre  fees  and  accepted  the  office  of  receiver 
of  public  moneys,  and  devoted  all  his  surplus  income  to  the  cause. 
The  enthusiasm  kindled  and  men,  women  and  children  became 
aroused  and  interested,  and  the  excitement  spread  through  the 
State.  Papers  were  bought  and  established,  appeals  were  made, 
broadsides  written,  and  in  less  than  six  months  after  the  adjourn- 
ment of  the  General  Assembly  the  heavens  glowed  as  if  illuminated 


70  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

by  prairie  fires.  The  convention  men  formed  secret  clubs  with  grips 
and  signals,  and  adopted  as  a  pass  word  "convention  or  die,"  but  it 
was  of  no  use.  There  was  a  God  in  Israel.  The  anti-convention 
party  became  thoroughly  united,  and  were  led  by  men  that  knew 
no  fear,  and  whose  convictions  were  so  strong  that  they  would  have 
gone  to  the  scaffold  or  the  stake  singing  hosannas  to  God.  They 
belonged  to  that  class  of  martyrs  that  have  worshiped  God  and  died 
for  the  "  Old  Cause,"  since  the  Redeemer  was  crucified  on  the  cross 
and  since  Sidney  poured  out  his  soul  for  the  liberty  of  his  fellow- 
men. 

The  leaders  of  the  convention  party  were  politicians  and 
schemers.  They  were  influenced  to  a  great  extent  by  their  ambi- 
tion for  office  and  were  envious  and  distrustful,  often  angry,  often 
overbearing  and  in  want  of  respect  for  the  opinions  of  others. 
Gov.  Reynolds,  an  active  convention  man  himself,  says  that  "the 
convention  question  gave  rise  to  two  years  of  the  most  furious  and 
boisterous  excitement  and  contest  that  ever  visited  Illinois.  Men, 
women  and  children  entered  the  arena  of  party  warfare  and  strife, 
and  the  families  and  neighborhoods  were  so  divided  and  furious  and 
bitter  against  one  another  that  it  seemed  as  if  a  regular  civil  war 
might  result.  The  leaders  of  the  convention  were  Elias  Kent 
Kane,  McLean,  Judge  Phillips,  Judge  McRoberts,  A.  P.  Field, 
Governor  Bond,  A.  Beaird.  Robinson,  Smith,  Kinney,  West,  R.  M. 
Young  and  others.  The  opposition  was  headed  by  Governor  .Coles, 
Rev.  J.  M.  Peck,  Judge  Lockwood,  Daniel  P.  Cook,  William  H. 
Brown,  Judge  Pope,  Governor  Edwards,  Morris  Birkbeck.  George 
Flower,  David  Blackwell,  Hooper  Warren,  Henry  Eddy,  George 
Forquer,  George  Churchill  and  others.  Ostensibly  the  most  influ- 
ential and  energetic  public  men  were  on  the  side  of  the  convention, 
but  the  opposition  was  better  organized  and  trained  in  the  cause. 
The  facts  and  arguments  were  the  strongest  on  the  merits  of  the 
subject  in  opposition  to  slavery,  which  had  its  effect  in  such  long 
discussions  before  the  election.  The  question,  as  it  was  familiarly 
called  at  the  time,  united  the  various  denominations  of  religion 
which  had  never  before  acted  together.  The  opposition  to  the 
convention  labored  with  more  enthusiasm  and  devotedness  to  the 
cause  than  the  other  side  and  organized  better  and  sooner.  The 

O 

opposition  succeeded  by  1,800  votes  majority,  and  thus  ended  the 
most  important  and  the  most  exciting  election  that  was  ever  wit- 
nessed in  the  State.  The  full  vote  stood  4,972  for  the  convention. 


ATTEMPT  TO  MAKE  ILLINOIS  A  SLAVE  STATE.  71 

and  6,400  against  the  convention,  showing  that  each  party  brought 
out  its  full  strength.  The  victory  thus  won  undoubtedly  saved 
Indiana  (because  the  same  thing  was  agitated  there)  from  becoming 
a  slave  State,  and  set  bounds  to  that  great  blighting  and  withering 
curse  to  every  clime  and  country  it  ever  reached.  "  The  noise  of 
the  conflict  has  long  since  died  away,  and  the  actors  in  it  all  rest 
from  their  labors,  but  a  grateful  people  should  always  remember 
that  freedom  in  Illinois  was  secured,  not  by  the  ordinance  of  1787 
alone,  but  by  the  persistent  energy,  the  noble  faith  and  heroic 
enthusiasm  of  our  honored  fathers  of  the  present  century." 

Those  who  were  in  favor  of  calling  a  convention  to  make 
Illinois  a  slave  State,  numbered  among  its  champions,  the  ablest  and 
most  influential  men  of  the  time,  among  whom  were  ex-Governor 
Bond,  and  six  gentlemen  who  afterward  became  United  States 
senators :  Jesse  B.  Thomas,  John  McLean,  Elias  Kent  Kane,  John 
M.  Robinson,  Samuel  McRoberts  and  Richard  M.  Young;  there  were 
also,  Chief  Justice  Phillips  of  the  Supreme  Court,  who  was 
characterized  at  the  time  as  a  demagogue  of  the  first  water,  William 
Kinney  and  Zadoc  Casey,  subsequently  lieutenant-governors  of  the 
State,  Colonel  Alexander  P.  Field,  Joseph  A.  Beaird,  Gen.  "Willis 
Hargrave,  Emanuel  J.  West,  Lieutenant-Governor  Hubbard,  John 
Reynolds,  a  judge  of  the  Supreme  Court,  Thomas  Reynolds,  brother 
of  John  Reynolds,  afterward  governor  of  Missouri,  and  many  others. 

On  the  anti-convention  side  were  a  class  of  men,  not  so  dis- 
tinguished, but  they  were  the  most  conscientious,  intensely  earnest 
and  determined  men  that  ever  lived.  The  martyrs  and  holy  men 
of  old  never  surpassed  them  in  zeal  and  Christian  fortitude.  Men, 
we  have  been  told,  prayed  for  success  and  the  blessings  of  Almighty 
Godmpon  their  efforts  and  the  results  of  their  labors  who  never 
prayed  before,  and  Christian  women  sang,  wept  and  prayed,  cheered 
and  encouraged  them  to  persevere  to  the  end. 

Governor  Coles  took  the  lead  and  worked  night  and  day  organ- 
izing the  opposition  everywhere  and  wielding  his  facile  and  power- 
ful pen  with  great  effect.  He  was  aided  and  assisted  by  Judge 
Lockwood,  William  H.  Brown,  Rev.  John  M.  Peck,  Morris  Birk- 
beck,  Robert  Flower,  and  hosts  of  others  whose  names  deserve 
immortality. 

Among  the  most  effective  and  untiring  workers  was  Rev.  John 
M.  Peck  of  St.  Clair  county.  He  was  originally  from  Connecticut, 
possessed  of  a  strong  and  comprehensive  mind,  well  educated  and 


72  CONSTITUTIONAL   HISTORY   OF   ILLINOIS. 

with  an  energy  and  perseverance  rarely  surpassed.  His  headquar- 
ters were  St.  Clair  county.  This  he  organized  in  the  most  thorough 
manner  and  then  extended  his  system,  which  was  something  like 
the  organization  of  the  minute  men  in  the  times  of  the  Revolution, 
to  fourteen  other  counties.  He  appealed  to  God  and  the  con- 
sciences of  men  with  an  eloquence  akin  to  that  of  St.  Paul.  Uniting 
the  work  of  establishing  Sunday  schools,  temperance  societies  and 
the  distribution  of  the  Bible,  he  preached  a  crusade  against  slavery 
wherever  he  went,  equal  to  those  who  roused  the  masses  to  rescue 
the  Holy  Sepulchre  from  the  hands  of  the  infidels  during  the  mid- 
dle ages.  He  was  a  master  of  pathos  and  painted  the  trials,  suffer- 
ings and  sorrows  of  the  poor  and  downcast  creatures  who  were 
held  in  bondage  in  colors  such  as  moved  all  to  tears.  To  the  hum- 
ble and  needy  farmers  he  held  above  them  a  crown  of  glory  like 
that  of  Bunyan's  diadem  over  the  toiler  with  the  muck-rake  if  they 
did  their  duty, and  his  appeals  to  their  wives  to  aid  and  assist  them 
in  the  good  work  were  irresistible.  Bunyan's  allegory  was  at  his 
tongue's  end  and  he  never  failed  to  point  out  the  trials  of  Christian 
as  those  of  their  own,  and  that  the  sight  of  the  Delectable  mountains 
and  Paradise  itself  were  theirs  if  they  would  go  to  the  polls  and 
vote  against  calling  a  convention  to  make  Illinois  a  slave  State. 
John  Bunyan  had  much  to  do  with  dedicating  to  freedom  our  great 
and  glorious  Commonwealth.  God  be  praised. 

Mr.  Hinsdale,  in  his  "  Old  Northwest,"  in  reviewing  this  period 
and  this  great  struggle  says  :  "  From  the  first  the  propagandists 
fought  a  losing  battle.  When  the  end  was  finally  reached,  the  vote 
stood  for  a  convention,  4,950;  against  a  convention,  6,822,  being  a 
majority  of  1,872  in  a  total  vote  of  11,772.  In  view  of  this  large 
majority,  the  subsequent  political  history  of  Illinois  for  thirty  years 
is  very  remarkable.  The  State  passed  almost  at  once  into  the  hands 
of  a  powerful  and  violent  pro-slavery  party  and  thus  remained  until 
the  repeal  of  the  Missouri  Compromise  brought  about  a  new  com- 
bination of  political  forces.  But  the  attempt  to  enthrone  slavery 
in  the  citadel  of  the  State  Constitution  was  not  renewed." 


CHAPTER  XVI. 

The  Development  of  Infant  Industries,  or  how  Banking-  can 
be  Carried  on  by  Politicians. 


history  of  banking  by  politicians  and  the  administration  of 
-L  State  banks  by  boards  of  directors,  composed  of  politicians,  is 
one  of  the  most  instructive  lessons  ever  taught  a  free  people.  The 
Jate  Thomas  Ford  has  given  a  most  graphic  account  of  the  period  of 
speculation  in  Illinois,  which  set  in  soon  after  the  adoption  of  the 
Constitution  of  1818,  and  which  is  worth  recounting.  "  Until  1817," 
says  he,  "everything  of  a  foreign  growth  or  manufacture  had  been 
brought  from  New  Orleans  on  keel  boats,  towed  with  ropes  or 
pushed  with  poles  by  the  hardy  race  of  boatmen  of  that  day,  up 
the  current  of  the  Mississippi,  or  else  wagoned  across  the  moun- 
tains from  Philadelphia,  and  from  thence  floated  down  the  Ohio, 
to  its  mouth,  in  keel  boats,  and  from  there  shoved,  pushed  and 
towed  up  the  Mississippi,  as  from  New  Orleans.  Upon  the  con, 
elusion  of  the  war  of  1812,  the  people  from  the  old  States  began  to 
come  and  settle  in  the  country.  They  brought  some  money  and 
property  with  them  and  introduced  some  changes  in  the  customs 
and  modes  of  living.  Before  the  war,  such  a  thing  as  money  was 
scarcely  ever  seen  in  the  country.  The  skins  of  the  deer  and  raccoon 
supplying  the  place  of  a  circulating  medium." 

The  money  which  was  now  brought  in  and  which  had  before 
been  paid  by  the  United  States  to  the  rnilitia  during  the  war,  turned 
the  heads  of  all  the  people,  and  gave  them  new  ideas  and  aspira- 
tions, so  that  by  1819,  the  whole  country  was  in  a  rage  for  specu- 
lating in  lands  and  town  lots.  The  States  of  Ohio  and  Kentucky,  a 
'little  before,  had  each  incorporated  a  batch  of  about  forty  independ- 
ent banks.  The  Illinois  Territory  had  incorporated  two  at  home, 
one  at  Edwardsville,  and  the  other  at  Shawneetown;  and  the  Terri- 
tory of  Missouri  added  two  more  at  St.  Louis. 

These  banks  made  money  very  plenty;  emigrants  brought  it  to 
the  State  in  great  abundance.  The  owners  of  it  had  to  use  it  in 
some  way,  and  as  it  could  not  be  used  in  legitimate  commerce  in  a 
State  where  commerce  did  not  exist,  the  most  of  it  was  used  to 

(73) 


74  CONSTITUTIONAL    HISTORY   OF   ILLINOIS. 

build  houses  in  towns  which  the  limited  business  of  the  country 
did  not  require,  and  to  purchase  land  which  the  labor  of  the  country 
was  not  sufficient  to  cultivate.  This  was  "developing  the  infant 
resources  of  a  new  country."  The  United  States  Government  was 
then  selling  land  at  two  dollars  per  acre;  eighty  dollars  on  the 
quarter  section  to  be  paid  down  on  the  purchase  with  a  credit  of 
five  years  for  the  resident.  For  nearly  every  sum  of  eighty  dol- 
lars there  was  in  the  country,  a  quarter  section  of  land  was  pur- 
chased; for  in  those  days  there  were  no  specie  circulars  to  restrain 
unwarrantable  speculations;  but,  on  the  contrary,  the  notes  of  most 
of  the  numerous  banks  in  existence  were  good  in  the  public  and 
land  offices.  The  amount  of  land  thus  purchased  was  increased  by 
the  general  expectation  that  the  rapid  settlement  of  the  country 
would  enable  the  speculator  to  sell  it  for  a  high  price  before  the 
expiration  of  the  credit.  This  great  abundance  of  money,  also, 
about  this  time  made  a  vast  increase  in  the  amount  of  merchandise 
brought  into  the  State.  "When  money  is  plenty,  every  man's  credit 
is  good.  The  people  dealt  with  the  stores  on  credit,  and  drew 
upon  a  certain  fortune  in  prospect  for  payment.  Every  one  was 
expecting  to  make  it  out  of  the  future  immigrant. 

The  speculator  was  to  sell  him  houses  and  lands,  and  the  farmer 
was  to  sell  him  everything  he  wanted  to  begin  with  and  to  live 
upon  until  he  could  supply  himself.  Towns  were  laid  out  all  over 
the  country  and  lots  were  purchased  by  every  one  on  credit;  the 
town  maker  received  no  money  for  his  lots,  but  he  received  notes 
of  hand  which  he  considered  to  be  as  good  as  cash,  and  he  lived 
and  embarked  in  other  ventures  as  if  they  had  been  cash  in  truth. 
In  this  mode,  by  the  year  1820,  nearly  the  whole  people  were 
irrevocably  involved  in  debt.  The  banks  in  Ohio  and  Kentucky 
broke  one  after  another,  leaving  the  people  of  those  States  covered 
with  indebtedness  and  without  the  means  of  extrication.  The 
banks  at  home  and  in  St.  Louis  ceased  business. 

The  great  tide  of  immigrants  from  abroad,  which  had  been 
looked  for,  failed  to  come.  Real  estate  was  unsalable;  the  lands 
purchased  of  the  United  States  were  unpaid  for  and  likely  to  be 
forfeited.  Bank  notes  had  driven  out  specie,  and  when  these  notes 
became  worthless,  there  was  no  money  of  any  description  left  in 
the  country. 

To  remedy  those  evils,  the  Legislature  of  1821  created  a  State 
bank.  It  was  founded  without  money  and  wholly  on  the  credit  of 


DEVELOPMENT    OF   INFANT   INDUSTRIES.  75 

the  State.  It  was  authorized  to  issue  one,  two,  three,  five,  ten  and 
twenty  dollar  notes,  the  likeness  of  bank  bills,  bearing  two  per  cent, 
annual  interest,  and  payable  by  the  State  in  ten  years.  A  principal 
bank  was  established  at  Vandaliaand  four  or  five  branches  in  other 
places;  the  Legislature  elected  all  the  directors  and  officers,  a  large 
number  of  whom  were  members  of  the  Legislature,  and  all  of  them 
professional  politicians. 

The  bank  was  directed  by  law  to  lend  the  bills  to  the  people,  to 
the  amount  of  one  hundred  dollars  on  personal  security,  and  upon 
the  security  of  mortgages  upon  land  for  a  greater  sum. 

These  bills  were  to  be  received  in  payment  of  all  State  and 
county  taxes,  and  for  all  costs  and  fees  and  salaries  of  public  officers; 
and  if  a  creditor  refused  to  indorse  on  his  execution  his  willingness 
to  receive  them  in  payment  of  his  debt,  the  debtor  could  replevy 
or  stay  its  collection  for  three  years  by  giving  personal  security. 

The  bill  creating  this  new  system  of  banking,  was  forced 
through  the  House  by  sheer  brute  force.  John  McLean,  of  Shaw- 
neetown,  who  was  speaker  of  the  House  at  the  time,  was  insulted 
and  bullied  to  such  a  degree  and  in  such  an  outrageous  manner,  that 
he  resigned  the  speakership,  and  opposed  the  bill  with  all  his  might, 
but  it  was  of  no  avail. 

The  governor  and  judges,  acting  as  a  council  of  revision,  objected 
to  it  as  being  unconstitutional  and  inexpedient,  but  it  passed  through 
both  Houses  by  the  constitutional  majorities.  The  Supreme  Court 
of  the  United  States  afterward  decided  that  all  the  bills  of  such 
banks  which  were  payable  at  a  future  day,  were  bills  of  credit  and 
prohibited  by  the  Constitution. 

In  1821  the  new  bank  went  into  operation.  Every  man  who 
could  get  an  indorser  borrowed  his  hundred  dollars.  The  directors 
were,  as  before  stated,  all  politicians,  and  were  either  then  candi- 
dates for  office  or  expected  to  be.  Lending  to  everybody  and 
refusing  none  was  the  surest  road  to  popularity. 

Three  hundred  thousand  dollars  of  the  new  money  was  soon 
lent  without  much  attention  to  security  or  care  for  eventual  pay- 
ment. It  first  fell  twenty-live  cents,  then  fifty  and  then  seventy 
cents  below  par.  As  the  bills  of  the  Ohio  and  Kentucky  banks  had 
driven  all  other  money  out  of  the  State,  so  this  new  issue  effectually 
kept  it  out.  Such  a  total  absence  was  there  of  the  silver  coins,  that 
it  became  utterly  impossible,  in  the  course  of  trade,  to  make  small 
change.  The  people,  from  necessity,  were  compelled  to  cut  the 


76  CONSTITUTIONAL    HISTORY   OF   ILLINOIS. 

new  bills  into  two  pieces  so  as  to  make  two  halves  of  a  dollar.  Fol 
about  four  years  there  was  no  other  kind  of  money,  but  this  uncur- 
rent  State  bank  paper.  In  the  meantime,  very  few  persons 
pretended  to  pay  their  debts  to  the  bank.  More  than  half  of  those 
who  borrowed  considered  what  they  had  gotten  from  it  as  so  much 
clear  gain,  and  never  intended  to  pay  it  from  the  first. 

By  the  year  1824  it  became  impossible  to  carry  on  the  State 
government  with  such  money  as  the  bills  of  this  bank.  The  State 
revenue  varied  from  twenty-five  to  thirty  thousand  dollars  per 
annum  which  was  raised  almost  exclusively  by  a  tax  on  lands,  then 
owned  by  non-residents,  in  the  military  tract  lying  northwest  of  the 
Illinois  river. 

The  resident  land  tax  in  other  parts  of  the  State  was  paid  into 
the  county  treasuries.  The  annual  expenditures  of  the  State  gov- 
ernment were  about  equal  'to  the  annual  revenues;  and  as  the  taxes 
were  collected  in  the  bills  of  the  State  bank,  the  Legislature,  to 
carry  on  the  government,  were  compelled  to  provide  for  their  own 
pay,  that  of  all  the  public  officers,  and  the  expenses  of  the  govern- 
ment, by  taking  and  giving  enough  of  the  depreciated  bills  to  equal 
in  value  the  sums  required  to  be  paid.  So  that  each  member 
instead  of  receiving  three  dollars  per  day,  received  nine  dollars  per 
day.  The  salaries  of  the  governor  and  judges,  and  all  other  ex- 
penses were  paid  in  the  same  way.  So  that  if  $30,000  were  required 
to  pay  the  expenses  of  the  government  fora  year,  under  this  system 
it  took  $90,000  to  do  it.  And  thus  by  the  financial  aid  of  an  insolv- 
ent bank,  the  Legislature  managed  to  treble  the  public-  expenses, 
without  increasing  the  revenues  or  amount  of  service  to  the  State. 
In  fact,  this  State  lost  two-thirds  of  its  revenues  and  expended 
three  times  the  amount  necessary  to  carry  on  the  government. 
In  the  course  of  ten  years,  it  must  have  lost  more  than  $150,000  by 
receiving  a  depreciated  currency,  $150,000  more  by  paying  it  out, 
and  $100,000  of  the  loans,  which  were  never  repaid  by  the  borrow- 
ers and  which  the  State  had  to  make  good,  by  receiving  the  bills  of 
the  bank  for  taxes,  by  funding  some  at  six  per  cent,  interest,  and 
paying  a  part  in  cash  in  the  year  1831. 


Repeal  of  the  Black  Laws  of  Illinois. 

struggles  which  the  early  settlers  of  Illinois  underwent  in 
endeavoring  to  establish  a  free  government,  developed  heroes 
who  braved  hardships,  dangers  and  outrages  such  as  have  seldom 
fallen  to  the  lot  of  mortals  in  this  new  world.  They  deserve  to 
have  their  names  handed  down  to  posterity,  embalmed  by  the 
most  tender  recollections. 

"Long1  ago  was  Gracchus  slain, 
Brutus  perished  long  ago; 
But  the  living  roots  remain, 

Whence  the  shoots  of  freedom  grow." 

Among  those  who  made  their  appearance  on  the  stage  of  action 
soon  after  the  pioneers  had  retired  to  rest  and  who  entered  with 
heart  and  soul  into  the  work  of  liberating  the  slaves  and  of  amelio- 
rating the  condition  of  the  negroes  and  mulattoes  in  Illinois  was 
Zebina  Eastman.  He  located  at  an  early  day  in  Chicago,  estab- 
lished "The  Western  Citizen,"  and  in  connection  with  Hooper 
Warren,  James  H.  Collins,  Calvin  DeWolf,  Philo  Carpenter,  Dr. 
C.  Y.  Dyer,  L.  C.  P.  Freer,  Kev.  F.  Bascom  and  others  who  were 
indignant  that  a  pro-slavery  mob  had  taken  the  life  of  Elijah  P. 
Lovejoy  at  Alton,  and  who  revolted  at  the  arrogant  and  cruel  spirit 
manifested  by  pro-slavery  men  everywhere,  organized  the  old 
"Liberty  Party,"  and  preached  abolitionism  pure  and  simple 
throughout  the  length  and  breadth  of  the  land. 

Mr.  Eastman  took  a  great  interest  in  the  movement  to  repeal 
the  Black  Laws  of  Illinois,  and  it  is  to  his  efforts,  and  to  John  Jones, 
as  much,  if  not  more,  than  any  others,  that  those  disgraceful  laws 
were  repealed. 

In  1882,  in  a  discourse  before  the  Chicago  Historical  Society,  he, 
among  other  things,  said : 

By  the  ordinance  of  1787  it  is  provided  that  "  there  shall  be 

(77) 


78  CONSTITUTIONAL   HISTORY    OP   ILLINOIS. 

neither  slavery  nor  involuntary  servitude  in  the  said  Territory, 
otherwise  than  in  punishment  of  crime  whereof  the  party  shall  have 
been  duly  convicted." 

The  enabling  act  of  Congress,  by  which  the  people  of  the  State 
might  vote  to  put  off  their  minority  and  enter  into  the  indissoluble 
bonds  of  the  National  Union,  required  strict  conformity  to  this 
condition  of  perpetual  freedom. 

The  Constitution  of  the  State,  made  in  1818,  makes  the  harmo- 
nious declaration:  "  Neither  slavery  nor  involuntary  servitude  shall 
hereafter  be  introduced  into  this  State  otherwise  than  for  the  pun- 
ishment of  crimes  whereof  the  party  shall  have  been  duly  con- 
victed," indorsing  and  using  the  words  of  the  ordinance. 

One  would  think  the  temple  of  liberty  sufficiently  guarded,  bul- 
warked by  these  two  firm  buttresses,  standing  on  the  pillars  of  its 
portal.  But  there  is  something  more  in  this  State  Constitution, 
with  only  a  break  of  a  semicolon.  It  is  this:  "Nor  shall  any  male 
person  arrived  at  the  age  of  twenty-one  years,  nor  any  female  per- 
son arrived  at  the  age  of  eighteen  years,  be  held  to  serve  any 
person  as  a  servant  under  any  indenture  hereafter  made,  unless  such 
person  shall  enter  into  such  indenture  while  in  a  state  of  perfect 
freedom,  and  on  a  condition  of  a  bona  fide  consideration  received 
or  to  be  received  for  their  services.  Nor  shall  any  indenture  of 
any  negro  or  mulatto  hereafter  made  and  executed  out  of  this  State? 
or  if  made  in  this  State,  whose  term  of  service  exceeds  one  year, 
be  of  the  least  validity,  except  those  given  in  cases  of  apprentice- 
ship." 

There  seems  to  be  a  strange  muddle  of  conditions  in  this  lan- 
guage. Involuntary  servitude  is  prohibited,  yet  there  are  certain 
conditions  that  remind  us  that  permission  is  granted  under  prohi- 
bition. 

The  constitutional  provisions  are  continued  in  other  sections: 
"  No  person  bound  to  labor  in  any  other  State  shall  be  hired  to 
labor  in  this  State,  except  within  the  tract  reserved  for  the  salt 
works  near  Shawneetown,  nor  even  in  that  place  for  a  longer  period 
than  one  year  at  any  one  time,  nor  shall  it  be  allowed  there  after 
the  year  1825.  Any  violation  of  this  article  shall  effect  the  eman- 
cipation of  such  person  from  his  obligation  to  service."  Permis- 
sion again  under  prohibition!  There  is  something  about  this  salt- 
work  business  worthy  of  attention.  It  was  one  of  the  rat-holes 


79 

through  which  slavery  crept  into  the  Territory.  Saline  springs  or 
bogs  were  discovered  which  gave  to  the  early  settlers  the  much 
needed  article  of  salt,  if  properly  improved.  To  bring  over  a  slave 
from  Kentucky,  to  make  salt  enough  to  salt  his  porridge,  served 
the  legal  purpose  of  his  introduction,  and  many  a  farm  was  fenced 
and  worked  in  the  southern  portion  of  the  State  by  slaves  working 
in  the  salt  works,  and  that  process  of  saving  slavery  with  salt  con- 
tinued till  1825. 

Another  section  provides  as  follows:  "Each  and  every  person 
who  has  been  bound  to  service  by  contract  or  indenture  in  virtue  of 
the  laws  of  Illinois  Territory  heretofore  existing,  and  in  conformity 
to  the  provisions  of  the  same,  without  fraud  or  collusion,  shall  be 
held  to  a  specific  performance  of  their  contracts  or  indentures;  and 
such  negroes  and  mulattoes  as  have  been  registered  in  conformity 
with  the  aforesaid  laws  shall  serve  out  the  time  appointed  by  said 
laws;  provided,  however,  that  the  children  hereafter  born  of  such 
persons,  negroes  or  mulattoes,  shall  become  free — the  males  at  the 
age  of  twenty-one  years,  and  the  females  at  the  age  of  eighteen 
years.  Each  and  every  child  born  of  indentured  parents  shall  be 
entered  with  the  clerk  of  the  county  in  which  they  reside  by  the 
owners,  within  six  months  from  the  birth  of  said  child."  It  seems 
by  this  that  children  of  indentured  persons  were  constitutionally 
owned  by  their  masters.  By  reference  to  the  law,  which  will  be 
soon  quoted,  it  will  be  seen  that  perpetual  slavery  was  possible  un- 
der this  clause  of  the  Constitution,  for  none  of  the  children  were 
emancipated  till  they  were  of  legal  age;  but  propagation  may  come 
much  earlier  than  legal  majority. 

Such  were  the  constitutional  provisions  of  the  first  Constitution 
of  the  State,  looking  fair  on  their  face;  but  on  close  scrutiny  it  is 
seen  to  attempt  to  provide  for  a  muddled  condition  of  things,  which 
that  old  muddle  of  muddles,  the  slave  system,  ever  brought  to  the 
community  and  muddled  the  heads  of  our  good  fathers.  They 
would  prohibit  it,  but  were  required  to  make  provisions  for  its 
continuance.  The  fathers  of  our  Constitution,  like  Gov.  Edwards 
and  Nathaniel  Pope,  were  among  the  best  of  our  early  men.  It 
was  the  hardest  fate  ever  brought  upon  a  nation  to  face  this 
perpetuated  evil  of  centuries  with  the  necessity  that  it  must  be 
ended ;  and  it  is  not  strange  that  it  took  the  greatest  war  of  modern 
times  to  cut  that  intricate  knot  with  the  sword. 


80  CONSTITUTIONAL   HISTORY    OF    ILLINOIS. 

We  must  now  go  back  a  century  or  more  to  find  facts  which 
will  help  to  solve  this  muddle  of  the  Constitution. 

Notwithstanding  Illinois  was  a  part  of  the  Northwest  Territory, 
and  under  the  restriction  of  this  ordinance,  and  one  of  the  States 
formed  under  it,  it  was  nevertheless  one  of  the  old  slave  colonies. 
Slavery  was  introduced  into  Illinois  in  1720,  when  it  was  a  part  of 
the  French  possessions  of  the  Northwest.  Philip  Francis  .Renault 
formed  a  company  in  France  for  working  mines  in  Upper  Louisiana, 
which  was  a  part  of  Illinois;  and  he  started  from  his  country, 
ostensibly  in  the  mining  business,  with  two  hundred  mechanics  and^ 
laborers,  and  on 'his  way,  at  San  Domingo,  he  purchased  five  hun- 
dred slaves  arid  brought  them  with  him  to  Illinois.  A  portion  of 
these  or  their  descendants  were  afterward  removed  to  the  other 
French  possessions  on  the  west  of  the  Mississippi,  and  helped  to 
swell  the  aggregate  of  Louisiana  slavery.  Those  that  remained  were 
the  progenitors  of  the  class  known  in  our  State  from  old  time  as 
the  "French  slaves,"  and  fell  in  later  as  a  part  of  the  report  of  the 
census  of  slaves  in  Illinois,  and  the  Frenchman  Renault  must  be  set 
down  as  the  first  Illinois  slave-holder. 

The  importation  of  blacks  made  a  distinct  class  and  the  occa- 
sion of  a  distinct  order  of  the  slave-holders  about  Kaskaskia  and 
the  American  bottoms,  and  where  now  descendants  of  both  masters 
and  slaves  reside  in  a  common  Illinois  citizenship.  At  that 
time  slavery  was  legalized  in  all  Christian  countries — that  is, 
if  making  a  system  which  the  law  did  not  create  be  legalizing 
it.  If  there  is  any  law  that  created  American  slavery  I  have 
not  yet  found  it.  These  slaves  that  Renault  brought  to  Illinois 
were  under  French  jurisdiction  at  that  time  and  for  nearly  half  a 
century,  till  the  Northwest  was  ceded  to  Great  Britain  in  the  treaty 
of  1T63.  They  then  came  under  the  English  law  of  bondage  (if 
there  was  any  such);  and  when  the  territory  was  captured  by 
George  Rodgers  Clark,  in  1778,  which  was  done  in  the  name  of  the 
sovereignty  of  Virginia,  if  they  continued  slaves  under  any  law  it 
must  have  been  under  the  slave  code  of  Virginia.  When  that  State 
ceded  the  territory  to  the  Nation  these  slaves  must  have  been  per- 
petuated in  a  bondage  under  United  States  law;  and  yet  the  United 
States  had  no  such  law.  From  the  cession  of  Virginia  to  the 
•  Nation  in  1784  till  1790,  when  Gov.  St.  Clair  organized  the  county 
which  took  his  nam«,  the  people  who  resided  in  this  territory  had 
no  legislative  or  judicial  supervision,  and  were  a  law  to  themselves^ 


KEPEAL  OP  THE  BLACK  LAWS.  81 

holding  the  slaves  with  the  grip  which  they  had  previously 
obtained.  But  the  ordinance  for  the  cession  declared  that  "  there 
shall  be  neither  slavery  nor  involuntary  servitude  in  the  said 
Territory."  Why  this  ordinance  was  inoperative  in  this  essen" 
tial  point  to  the  slavery  then  in  existence,  is  something  similar  in 
character  to  the  later  Dred  Scott  decision — virtually,  that  not  to 
have  slavery  was  unconstitutional.  But  the  action  of  the  ordinance 
of  1787  was  said  to  be  prospective,  and  the  courts  never  so  decided. 
It  was  not  until  1845  that  the  Supreme  Court  of  this  State  settled 
this  question  of  "vested  rights,"  deciding  that  the  slave  descendants 
of  Renault's  importation  of  125  years  previous  were  free;  and  the 
Constitution  of  this  State  of  1848  put  an  end  to  involuntary  servi- 
tude of  every  form  in  Illinois. 

In  1800  there  was  probably  a  population  in  the  section  that 
became  Illinois  of  3,000  persons.  At  that  time  there  were  reported 
in  the  census,  including  Indiana  as  well,  133  slaves.  These  must 
have  been  in  the  main  in  Illinois,  and  the  descendants  of  the  "  French 
slaves."  In  1810  Illinois  had  168  slaves;  in  1820,  917— a  vast 
increase  in  the  course  of  twenty  years,  showing  that  the  increase 
must  have  come,  if  genuine  slaves,  from  smuggling  in  from  the 
border  slave  States,  and  held  under  the  inherited  vested  rights  as 
laborers  in  the  salt  works,  or  from  the  "indentured  servants  system," 
which  was  a  dodge  upon  the  restrictive  clause  of  the  ordinance.  In 
1820  the  population  of  the  State  was  43,919  whites,  1,476  blacks 
917  of  which  were  slaves;  total,  50,345.  There  came  a  habit  of 
disregarding  this  prohibition  in  bringing  slaves  into  many  parts  of 
the  Territory,  and  even  reporting;  them  in  the  census.  This  was 
done  in  Wisconsin  as  late  as  1830,  the  marshal  reporting  a  number 
of  slaves  in  the  said  Territory.  Dr.  E.  G.  Dyer,  of  Burlington, 
Wis.,  father  of  the  United  States  Judge,  C.  E.  Dyer,  of  Racine, 
attacked  the  marshal  for  this  illegal  report,  and  disclosed  the  fact 
that  these  reported  slaves  were  held  generally  by  persons  in  respon- 
sible official  positions  in  the  United  States  Government.  Consider- 
able commotion  was  created  soon  after  this  report  of  1840  by  the 
disclosure  of  the  fact  that  Elder  John  T.  Mitchell,  a  Methodist 
preacher,  and  once  a  presiding  elder  in  Chicago,  had  brought  a  slave 
into  Wisconsin,  and  held  her  as  such,  and  afterward  removed  her  to 
Missouri,  still  retaining  the  woman  as  his  property,  and  therefore 
6 


82  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

gained  the  reputation  of  being  a  clerical  kidnaper.  Such  were  some 
of  the  early  assumptions  of  the  doctrine  of  squatter  sovereignty, 
that  a  man  had  the  inalienable  right  to  take  his  slave  with  him  into 
a  Territory  into  which  he  chose  to  remove.  These  facts  are  a  little 
ahead  of  the  logical  events  of  history.  But  it  suits  the  symmetry 
of  the  subject  to  bring  them  in  here.  It  is  best,  however,  to  state 
here  that  the  prohibition  of  slavery  in  the  Northwest  Territory  was 
a  bid,  like  "free  Kansas,"  for  its  settlement  by  a  hardy  and  indus. 
trious  class,  who  thrived  by  the  labor  of  their  own  hands,  and  for 
its  settlement  by  a  class  of  men  from  the  south  who  were  conscien- 
tiously opposed  to  slave-holding.  It  was  emphasized  as  a  free 
country,  and  free  men  felt  invited  to  make  here  their  homes.  The 
early  population  of  the  .Northwest  was  composed  of  the  mingled 
character  of  such  men,  and  those  who  believed  that  prosperity  came 
from  one  man  having  the  power  to  compel  some  other  man  to  work 
for  him  for  nothing. 

There  came,  then,  from  this  condition  the  incipient  conflict  of 
ideas  of  the  past  generation.  The  anti-slavery  sentiment  of  the 
revolution  was  then  pervading  as  a  live  principle.  There  was  dis- 
satisfaction by  interested  persons  on  the  other  side  at  the  restriction 
in  the  ordinance.  The  first  petition  on  the  subject  to  Congress 
came  in  1796  from  four  persons  in  Kaskaskia,  in  this  State,  the  seat 
of  this  inherited  French  slavery,  asking  that  slavery  might  be  tol- 
erated there.  It  seems  that  they  felt  they  were  holding  their  chat- 
tels on  a  feeble  tenure.  At  that  time  we  were  all  in  one  common 
Northwest  Territory.  Ohio  became  a  State  in  1800;  then  all  the 
territory  west  and  north  of  the  Ohio  river,  from  the  mouth  of  the 
Kentucky,  became  the  Territory  of  Indiana,  with  William  Henry 
Harrison,  governor.  In  1804  a  convention  was  held  at  Yincennes, 
of  which  Gov.  Harrison  was  president,  to  deliberate  on  territorial 
interests,  and  from  this  convention  went  up  a  memorial  to  Congress 
which  was  referred  to  a  committee,  which  reported  recommending 
the  suspension  of  the  sixth  article  of  the  ordinance  of  1787,  "  in  a 
qualified  manner  for  ten  years,  so  as  to  permit  the  introduction  of 
slaves  born  in  the  United  States."  This  report  was  not  adopted, 
neither  was  the  previous  prayer  of  the  Kaskaskians  heeded. 

At  the  session  of  the  Indiana  Territorial  Legislature  in  1806-7 
a  series  of  resolutions  were  adopted  and  reported  to  Congress  by 


REPEAL  OF  THE  BLACK  LAWS.  83 

the  delegate  of  the  territory,  requesting  the  suspension  of  this 
restrictive  article  of  the  ordinance.  We  were  then  a  part  of  that 
Territory.  Jesse  B.  Thomas  was  speaker  of  the  House,  and  Pierre 
Menard  president  of  the  Council,  both  citizens  of  Illinois,  the  latter 
a  French  slave-holder  and  the  former  intermarried  with  such. 
This  report  was  lost  in  Congress  also.  These  early  efforts  to 
establish  slavery  aroused  the  people,  and  an  issue  was  made  similar 
to  that  which  was  made  afterward  in  our  State  called  the  "  con- 
vention question."  Jonathan  Jennings,  an  anti-slavery  man,  was 
elected  delegate  to  Congress,  which  position  he  held  till  Indiana 
was  admitted  as  a  State.  It  is  known  that  Gen.  Harrison  was  in 
favor  of  introducing  slavery  into  the  Northwest  Territory. 

These  facts  prepare  us  for  the  introduction  of  the  "  The  Black 
Code  of  Illinois."  Some  of  the  people,  if  they  could  not  have 
slavery  legitimately,  would  have  it  illegitimately,  for  the  infamy 
which  fell  upon  us  was  conceived  in  sin  and  brought  forth  in 
iniquity,  a  half-parented  progeny. 

The  Indiana  Territorial  Legislature  passed  an  act,  dated  Sep- 
tember 17,  1807,  which  is  the  nucleus  of  our  Black  Code,  with  this 
title  :  "  An  act  concerning  the  introduction  of  negroes  and  mtilat- 
toes  into  this  Territory." 

There  are  five  sections  in  this  act,  and  it  permits  the  owner  of 
any  negro  or  mulatto,  above  the  age  of  fifteen,  to  bring  such  per- 
son into  the  Territory,  and  within  thirty  days  take  him  before  the 
clerk  of  the  court,  and  there  make  an  agreement  for  service, 
which  is  to  be  recorded.  If  the  slave  should  refuse  to  make  such 
contract,  then  the  owner  may  return  him  back  to  slavery  within 
sixty  days.  Such  slaves  should  be  held  to  service — males  until 
thirty-five  years  old  and  females  until  thirty -two.  The  master  was 
required  to  register  such  slaves  and  the  children  with  the  clerk; 
and  these  children  should  be  owned  by  the  master  and  held  to  serv- 
ice until  the  age  of  thirty,  and  females  until  the  age  of  twenty- 
eight. 

This  continued  to  be  the  law  of  the  Territory  of  which  Illinois 
was  a  part.  In  1809,  Indiana  became  a  State,  and  Illinois  inherited 
the  Territorial  condition  and  laws,  and  re-enacted  the  above.  It  is 
the  law  referred  to  in  the  Constitution.  Such  continued  to  be  the 
law  until  remodeled  after  the  Constitution  of  1819. 

But  the  iniquity  was  not  yet  fully  matured.     Another  law  was 


84  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

passed  in  1829.     These  were  codified,  BO  to  speak,  in  1833,  in  the 
revised  laws. 

There  are  twenty-five  sections  in  the  law  of  March  80,  1819. 
It  prohibits  any  black  or  mulatto  person  coming  into  the  State 
without  producing  a  certificate  of  freedom.  It  was  the  first  blow 
to  free  negroes.  It  followed  the  precedent  of  slave  State  legisla- 
tion, and  was  aimed  to  keep  Illinois  from  being  an  as}Tlumfor  fugi- 
tives from  oppression.  Free  negroes  having  such  certificates  were 
required  to  register  their  children.  It  forbids  any  person  bringing 
slaves  into  the  State  for  the  purpose  of  emancipation.  Under  this 
act  Gov.  Coles  was  fined  for  emancipating  his  slaves  July  4,  1819. 
It  forbids  slaves  leaving  plantations,  and  provided  that  if  they  be 
found  away  from  their  plantations  without  a  pass  they  might  be 
whipped  by  order  of  a  justice  to  the  extent  of  thirty-five  lashes; 
the  owner  of  a  plantation  finding  such  negro  on  his  premises  might 
flog  him  ten  lashes.  The  assembling  of  negroes  to  a  number  more 
than  three  was  to  be  regarded  as  a  riot,  and  such  assembling,  seditious 
speeches,  etc.,  might  be  punished  by  a  justice  at  his  discretion  by 
Hogging.  A  white  person  was  fined  $20  for  allowing  any  such 
assemblage.  It  was  made  the  duty  of  all  judges,  coroners,  justices^ 
etc.,  to  arrest  those  found  in  any  such  assemblage  and  put  them  in 
jail  till  next  day,  and  then  flog  thirty-nine  lashes  on  the  bareback* 
unless  it  should  occur  on  Sunday;  then  the  flogging  was  to  be 
piously  done  on  Monday. 

This  law  seems  to  be  a  transcript  of  the  slave  codes  of  Louis- 
iana or  South  Carolina.  This  act  was  passed  under  the  administra- 
tion of  Shadrach  Bond,  our  first  governor.  Hooper  Warren,  editor 
of  the  first  anti-slavery  paper  of  the  Nation,  printed  at  Edwards- 
ville,  said  that  a  party  had  already  been  formed  in  the  State  called 
the  Slave  party.  This  party  attempted  to  nullify  the  Northwest 
ordinance  by  passing  an  act  in  1823  to  call  a  convention  to  alter  the 
Constitution  so  as  to  admit  slavery.  Gov.  Coles  had,  however, 
been  previously  elected  by  a  small  majority,  and  he  was  an  anti- 
slavery  man  of  the  Jefferson  school.  The  convention  project  was 
voted  down  by  the  people.  The  people  were  anti-slavery  and  the 
Legislature  pro-slavery.  Senators  in  Congress  voted  to  admit  Mis- 
souri with  slavery,  and  the  people  condemned  the  act.  They 
elected  Daniel  P.  Cook,  after  whom  Cook  county  was  named,  who 
voted  against  Missouri,  and  the  people  continued  to  re-elect  him 
while  the  Legislature  made  senators  of  the  candidates  he  defeated 


REPEAL  OF  THE  BLACK  LAWS.  85 

at  the  polls.  Free  people  of  color  humbly  petitioned  the  Legisla- 
ture for  the  repeal  of  the  burdensome  Black  Laws,  but  their  peti- 
tions were  unheeded,  and  heavier  burdens  were  laid  upon  them. 

So,  in  1829,  ten  years  after  the  previous  elaborate  Black  Act,  and 
four  years  after  the  slave  party  met  with  its  rebuff  in  the  defeat  of 
the  call  for  the  convention,  the  legislators  attempted  to  do 
by  legislation  what  the  people  had  forbidden  them  to  do  by  the 
Constitution.  The  act  was  approved  January  7,  1829.  It  pro- 
hibits any  black  or  mulatto  person,  being  a  citizen  of  any  one  of  the 
United  States,  coming  and  residing  in  Illinois  until  he  produces  a 
certificate  of  freedom  and  gives  bonds  of  $1,000  that  he  will  not 
become  a  charge  to  the  county  as  a  pauper,  and  that  he  will  obey 
all  laws  enacted,  or  which  may  be  enacted,  and  $500  fine  is  imposed 
on  any  person  who  will  give  employment  or  sustenance  to  any  such 
black  person  who  does  not  give  the  bond.  Any  person  who  can 
not  furnish  a  certificate  shall  be  deemed  a  runaway  slave,  and  he 
may  be  taken  up  by  any  inhabitant  and  brought  before  a  justice, 
who  shall  commit  him  to  the  sheriff,  who  shall  commit  him  to  jail, 
and  advertise  him,  and,  if  no  master  comes,  sell  him  for  time  of 
service  to  pay  the  expenses  of  his  arrest.  The  law  forbids,  under 
penalty  of  fine  and  whipping,  the  marriage  of  any  colored  person 
with  a  white  person.  It  also  provides  that  if  any  negro  who  is  the 
property  of  any  person  shall  come  into  the  State  for  the  purpose 
of  hiring  out,  and  shall  institute  proceedings  for  his  freedom,  the 
case  shall  be  thrown  out  of  court  and  the  presumptuous  negro 
•thrown  into  jail. 

These  two  laws  of  1819  and  1829,  and  the  act  of  February  16, 
1833,  in  the  criminal  code,  were  the  main  pillars  of  the  Black  Code. 
The  criminal  code  enacts  that  if  any  person  shall  secrete  any  escaped 
slave,  or  shall  hinder  or  prevent  the  lawful  owner  from  retaking 
him,  he  shall  be  fined  $500  and  be  imprisoned  not  exceeding  six 
months.  Another  section  forbids  any  person  who  holds  any  indent- 
ured servant  from  taking  him  out  of  the  State  for  sale,  or  other- 
wise kidnaping  him,  under  the  penalty  of  a  fine  of  $500.  The 
crime  of  kidnaping  is  punished  the  same  as  the  crime  of  protecting 
the  fugitive,  less  the  imprisonment.  The  testimony  of  no  colored  or 
mulatto  person  can  be  taken  in  evidence  against  a  white  person. 
No  colored  child  is  permitted  to  attend  school  with  white  children. 
Indentured  servants  and  slaves  were  by  law  made  property,  and 
could  be  attached  for  debt,  sold  as  property,  devised  in  wills,  and 


86  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

sold  to  settle  estates;  and  in  taxation  ranked  with  cattle,  "jennies," 
and  jackasses  as  property. 

In  1845  there  was  another  revision  of  the  Jaws,  and  these  were 
all  compiled,  boiled  down,  and  made  available  for  handy  use  in  the 
administration  of  justice.  But  this  was  not  the  end  of  legislation. 
Two  or  three  years  after  the  passage  of  the  National  Fugitive  Slave 
Law  there  was  another  act  passed,  dated  February  12,  1853,  which 
would  seem  to  be  a  supererogation,  as  it  seems  to  be  a  repetition  of 
all  that  went  before,  with  this  difference,  that  it  made  the  act  of 
any  colored  person  coming  into  the  State,  or  any  person  bringing 
such  a  one  in,  a  high  misdemeanor.  That  was  coming  up  to  the 
climax  and  apex  of  crime  over  and  under  the  color  line.  This  act 
was  to  be  enforced  by  pains  and  penalties  and  fines  and  imprison- 
ments of  the  most  severe  and  elaborate  character.  These  acts  were 
the  laws  of  the  State  for  more  than  a  generation,  and  by  the  friends 
of  the  anti-slavery  agitation  were  attempted  in  many  sections  to  be 
rigidly  enforced.  Then  came  a  period  of  the  operation  of  the 
underground  railroad,  the  attempted  enforcement  of  these  laws, 
kidnaping,  lawful  and  unlawful  arrests  and  rescues  and  trials  before 
the  courts  for  harboring,  secreting  and  delivering  the  slave  from  his 

C3  *  CJ  — 

master  or  from  the  officers — all  occurring  with  many  rich  scenes  of 
humor,  in  which  the  "black  brother"  played  the  prominent  part. 

The  Supreme  Court  in  1855,  in  the  case  of  Joseph  Jarrot,  a 
colored  man,  v.  Julia  Jarrot,  made  a  decision  that  the  inherited 
slavery  from  the  old  French  import  was  unconstitutional.  Joseph 
was  a  descendant  of  the  French  slaves  and  Julia  of  the  slave-holders. 
The  Constitution  of  1848  made  all  slavery  unconstitutional  in 
accordance  with  the  decree  of  the  ordinance  of  1787.  But  the 
Black  Code,  in  the  main,  remained  a  part  of  the  law  till  the  close  of 
the  slaveholders'  rebellion.  In  1864  John  Jones,  a  noted  mulatto 
of  Chicago,  who  had  been  free  born,  and  had  deposited  his  freedom 
papers  with  the  Historical  Society,  carried  a  petition  through  the 
streets  of  Chicago  asking,  since  his  race  had  been  made  free,  that 
all  these  laws  that  made  distinction  on  account  of  color  might  be 
erased  from  our  statute  book.  He  went  to  Springfield  and  engi- 
neered the  enterprise.  Senator  Lansing  introduced  the  bill  early 
in  the  session  of  1865,  for  their  repeal,  and  they  went  out  as  the 
smoke  flies  upward. 

This  account  of  the  repeal  of  the  Black  Laws  by  Mr.  Eastman, 
is  so  full  and  complete  that  we  have  availed  ourselves  of  his  labors 


MASON    AND    DIXON's    LINE.  87 

in  this  regard.  Mr.  Eastman  was  one  of  the  most  loyal  and  patri- 
otic citizens  that  ever  lived  in  our  midst,  and  on  the  accession 
of  Mr.  Lincoln  to  the  office  of  President  was  rewarded  by  him  for 
his  faithful  services  to  his  country,  by  appointing  him  United  States 
Consul  to  Bristol,  England,  where  he  remained  for  several  years. 
He  died  at  Chicago,  greatly  honored  and  respected,  some  three 
years  since. 


CHAPTEK  XYIII. 

Mason  and  Dixon's  Line  in  Illinois. 

hostile  feelings  which  were  aroused  among  the  slave-hold- 
-  ing  and  free  State  advocates  during  the  great  convention 
struggle  of  1823-4  never  were  allayed,  and  gradually  led  to  a  wide 
separation  in  all  political  matters. 

Almost  from  the  establishment  of  the  seat  of  government  at 
Kaskaskia,  the  ancient  capital  of  the  French  of  the  "Illinois 
Country,"  an  imaginary,  yet  dividing  line,  has  existed  between  the 
northern  and  southern  half  of  the  State.  It  has  moved  forward  as 
the  capital  has  been  changed,  like  that  of  the  center  of  population, 
but  always  northward.  The  first  parallel  was  at  Kaskaskia,  next  at 
Yaudalia,  but  when  the  "  long  nine  "  moved  the  capital  from  that 
ancient  seat  of  empire  to  Springfield,  they  carried  with  them  "  this 
sign  of  the  Zodiac,"  as  if  it  was  the  ark  of  the  covenant,  and  it  has 
ever  since  been  "  like  a  pillar  of  fire  by  night "  and  "  a  cloud  by 
day,"  to  all  the  various  tribes  within  this  State. 

Among  politicians  the  rule  was,  as  old  General  Linder  once 
said,  like  that  which  governed  the  followers  of  Cortes.  "  After  the 
battle  every  excess  of  rapacity  was  sufficiently  vindicated  by  the 
plea  that  the  sufferers  were  unbaptized.  Avarice  stimulated  zeal. 
Zeal  consecrated  avarice.  Proselytes  and  gold  mines  were  sought 
with  equal  ardor."  In  all  political  campaigns  the  men  of  the  North 
were  most  convenient  and  useful  allies  to  draw  on  to  help  defray 
party  assessments  and  furnish  the  sinews  of  war,  but  it  would  never 
do  to  allow  them  to  direct  the  policy  of  the  party. 

In  the  exciting  times  of  election  the  Yanks  were  good  enough 
to  swell  the  majorities,  but  at  all  other  times  their  wants  and  neces- 


88  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

sities  went  unheeded.  When  the  inhabited  parts  of  the  State 
extended  a  little  north  of  Alton,  then  the  people  of  Randolph, 
Monroe,  St.  Clair  and  Madison,  now  southern  counties,  were  as 
anxious  for  a  canal  as  the  people  of  La  Salle  and  Hennepin.  When 
the  seat  of  government  was  removed  to  Yandalia  and  afterward 
to  Springfield,  those  living  between  these  two  places  immediately 
became  Southerners  and  ever  after  opposed  a  canal  with  all  their 
power  and  might. 

Time,  it  is  true,  has  somewhat  modified  this  feeling,  but  still 
"the  Cooks"  are  distrusted  and  the  representatives  of  portions  of 
the  State  greatly  fear  "  the  Trojans  bearing  gifts."  We  think, 
however,  that  it  is  about  time  that  this  "  Mason  and  Dixon's  line  " 
business  should  be  obliterated,  and  the  interests  of  the  people  be 
considered  strictly  upon  their  merits,  whether  those  wanting  public 
improvements  happen  to  live  in  Chicago,  Cairo,  Springfield  or 
Quincy. 

There  has  never  been  a  free  zone  in  Illinois  and  no  neutral  ground, 
but  from  the  very  earliest  times  there  has  been  a  north  and  south 
party  and  the  prejudices  of  each  against  the  other  have  been  mani- 
fested in  almost  every  constitutional  convention;  at  every  session 
of  the  General  Assembly  and  in  every  deliberative  body  ever  called 
for  any  purpose  whatever.  Governor  Ford  in  his  "  History  of 
Illinois"  refers  to  it  in  these  terms  :  "Obstructions  to  the  success 
of  wise  policy  which  would  relieve  the  State  from  multiplied  evils, 
were  to  be  found  in  the  character,  varieties  and  genius  of  the  masses 
of  the  people,  and  in  the  motives,  aims  and  enterprises  of  poli- 
ticians. The  shape  of  the  State  naturally  divided  the  Legislature 
into  represensatives  from  the  south  and  representatives  from  the 
north,  and  under  any  circumstances  a  State  so  long  in  proportion 
to  its  breadth,  must  contain  much  and  many  elements  of  discord. 

The  southern  portion  of  the  State  was  settled  principally  by 
people  from  the  slave-holding  States;  the  north  principally  from 
New  York  and  New  England.  The  southenrpeople  were  generally 
poor;  they  were-  such  as  were  not  able  to  own  slaves  in  a  slave 
State  and  who  came  here  to  avoid  slavery.  A  poor  white  man  in 
a  slave  State  is  of  little  more  importance  in  the  eyes  of  the  wealthy 
than  the  negro.  The  very  negroes  of  the  rich  call  such  poor  per- 
sons "  poor  white  folks." 

The  wealthy  immigrant  from  the  slave  States  rarely  came  here. 
He  moved  to  some  new  slave  State,  to  which  he  could  take  his 


MASON    AND    DIXON's    LINE.  89 

negroes.  The  consequences  were,  that  our  southern  settlements 
presented  bnt  few  specimens  of  the  more  wealthy,  enterprising, 
intellectual  and  cultivated  people  from  the  slave  States.  Those 
who  did  come  were  a  very  good,  honest,  kind,  hospitable  people, 
unambitious  of  wealth  and  great  lovers  of  ease  and  social  enjoy- 
ment. 

The  settlers  from  the  North,  not  being  debarred  by  our  Consti- 
tution from  bringing  their  property  with  them,  were  of  a  different 
class.  The  northern  part  of  the  State  was  settled  in  the  first 
instance  by  wealthy  farmers,  enterprising  merchants,  millers  and 
manufacturers.  They  made  farms,  built  mills,  churches,  school- 
houses,  towns  and  cities,  and  made  roads  and  bridges  as  if  by  magic, 
so  that,  although  the  settlements  in  the  southern  part  of  the  State 
are  twenty,  thirty,  forty  and  fifty  years  in  advance,  on  the  score  of 
age,  yet  are  they  ten  years  behind  in  point  of  wealth  and  all  the 
appliances  of  a  higher  civilization.  This  of  itself  was  cause  enough 
of  discord  between  the  two  ends  of  the  State.  The  people  of  the 
South  entertained  a  most  despicable  opinion  of  their  Northern 
neighbors.  They  had  never  seen  the  genuine  Yankee.  They  had 
seen  a  skinning,  trafficking  and  tricky  race  of  peddlers  from  New 
England,  who  much  infested  the  West  and  South,  with  tin  ware, 
small  assortments  of  merchandise  and  wooden  clocks,  and  they  sup- 
posed that  the  whole  of  the  New  England  people  were  like  these 
specimens. 

They  formed  the  opinion  that  a  genuine  Yankee  was  a  close, 
miserly,  dishonest,  selfish  getter  of  money,  void  of  generosity,  hos- 
pitality or  any  of  the  kindlier  feelings  of  human  nature.  The 
Northern  people  formed  equally  as  unfavorable  an  opinion  of  their 
Southern  neighbors.  The  Northern  man  believed  the  Southerner 
to  be  a  long,  lank,  lean,  lazy  and  ignorant  animal,  but  little  in  advance 
of  the  savage  state,  one  who  was  content  to  squat  in  a  log  cabin, 
with  a  large  family  of  ill-fed,  ill-clothed,  idle,  ignorant  children. 
The  truth  was,  both  parties  were  wrong.  There  is  much  natural 
shrewdness  and  sagacity  in  the  most  ignorant  of  the  Southern  peo- 
ple ;  and  they  are  generally  accumulating  property  as  fast  as  any 
people  can  who  had  so  little  to  begin  with.  The  parties  are  about 
equal  in  point  of  generosity  and  liberality  though  these  virtues 
show  themselves  in  each  people  in  a  different  way.  The  Southerner 
is,  perhaps,  the  most  hospitable  and  generous  to  individuals.  He  is 
lavish  of  his  victuals,  his  liquors  and  other  personal  favors.  But 


90  CONSTITUTIONAL    HISTORY    OF    ILLINOIS. 

the  Northern  man  is  the  most  liberal  in  contributing  to  what- 
ever is  for  the  public  benefit.  Is  a  school  house,  a  bridge  or  a 
church  to  be  built,  a  road  to  be  made,  a  scholar,  a  minister  to  be 
maintained  or  taxes  to  be  paid  for  the  honor  or  support  of  govern- 
ment, the  Northern  man  is  never  found  wanting.  This  misconcep- 
tion of  character  was  the  cause  of  a  good  deal  of  misunderstanding. 
The  great  canal  itself,  from  Lake  Michigan  to  the  Illinois  river,  was 
opposed  by  some,  at  an  early  day,  for  fear  it  would  open  a  way  for 
flooding  the  State  with  Yankees;  even  as  popular  a  man  as  the  late 
Lieutenant-Governor  Kinney  opposed  it,  in  a  speech  in  the  Senate, 
on  this  ground.  He  said  the  Yankees  spread  everywhere.  He  was 
looking  daily  for  them  to  overrun  the  State.  They  could  be  found 
in  every  country  on  the  globe;  and  one  strong  proof  to  him  that 
John  Cleves  Sy mines  was  wrong  in  his  theory  of  the  earth  was, 
that  if  such  an  opening  at  the  north  pole  as  that  theory  supposed 
really  existed,  the  Yankees  would  have  had  a  big  wagon  road  to  it 
long  before  its  discovery  by  Mr.  Symmee. 

In  this  manner,  and  by  constant  appeals  to  the  prejudices  of  the 
masses,  ill-feeling  was  engendered,  and  almost  any  public  enterprise 
which  was  proposed  by  the  people  of  one  section  of  the  State  would 
be  opposed  by  the  other.  It  was  exactly  such  a  feeling  as  existed 
between  the  people  of  the  Southern  States  and  the  people  of  the 
Northern  States  before  the  war. 

Another  thing:  The  State  of  Illinois  has,  from  the  beginning, 
been  cursed  by  politicians.  They  have  infested  the  country,  and 
from  the  time  when  Jesse  B.  Thomas  became  a  delegate  in  Con- 
gress from  the  Indiana  Territory,  down  to  a  period  within  the 
memory  of  men  still  living,  northern  and  southern  politics  have 
swayed  and  ruled  the  hour. 

All  local  questions  became  subordinate  to  national  questions,  and 
consequently  men  did  not  seem  to  take  much  interest  in  the  develop- 
ment or  improvement  of  the  State,  but  the  great  and  absorbing 
question  always  was,  what  would  be  for  the  best  interests  of  the 
party,  and  how  this  and  that  would  affect  the  party.  All  candidates 
for  office  were  selected  with  reference  to  their  ability  to  control 
the  masses  and  draw  votes,  and  not  with  reference  to  their  ability 
to  devise  a  system  of  public  improvements,  or  establish  a  sound 
system  of  finance  or  build  up  manufactories.  Stump  oratory  was 
of  greater  importance  than  the  wisdom  of  Solomon,  and  the  gift  of 
gab  greater  than  the  philosophy  of  Plato  or  Aristotle. 


PERIOD  PRECEDING  CONVENTION  OF  1847.          91 

It  is  trne  that  the  annals  of  this  State  have  been  adorned  by 
men  who  will  forever  take  rank  with  those  of  the  greatest  orators  of 
any  age  and  any  nation,  and  the  cultivation  of  eloquence  is  not  to  be 
despised  or  undervalued,  but  the  ability  of  a  man  to  harangue  the 
mulitnde  and  carry  the  crowd  is  one  thing,  statesmanship  is  entirely 
another.  Politicians  know  a  great  deal  better  how  to  obtain  an 
office  than  how  to  perform  its  duties  when  they  have  obtained  it. 
Political  science  ought  to  be  studied  with  reference  to  the  best 
interests  of  the  government,  and  not  for  the  best  interests  of  any 
given  party.  Education  should  be  more  universally  diffused, 
knowledge  made  more  abundant,  and,  above  all,  the  people  must 
be  taught  the  power  of  thinking  for  themselves  and  not  permit 
others  to  do  it  for  them. 

The  time  has  come  for  wiping  out  Mason  and  Dixon's  line  in 
the  State  of  Illinois  and  including  the  entire  State  in  a  free  zone. 


CHAPTER  XIX. 

The  Period  Preceding-  the  Calling1  of  the  Constitutional 
Convention  of  1847. 


period  preceding  the  calling  of  the  convention  of  1847, 
J-  had,  through  a  series  of  years,  been  a  period  of  unrest  and 
excitement  and,  at  times,  of  great  turbulence.  Politics  seemed  to 
absorb  the  attention  of  everybody  and  there  was  a  greater  amount 
of  partisanship  to  the  square  rod  than  was  ever  found  in  the  history 
of  States.  The  principal  business  of  the  lawyers  and  the  people 
generally,  seems  to  have  been  politics. 

Commencing  with  the  contest  over  the  appointment  of  Secretary 
of  State  in  1838,  by  Governor  Carlin,  to  take  the  place  of  one 
Alexander  P.  Field,  who  had  been  appointed  by  Governor  Edwards 
some  ten  years  before,  all  the  politicians  in  the  State  became 
involved  until  it  reached  the  Supreme  Court,  and  soon  a  war  broke 
out  upon  the  judges  of  the  Supreme  Court  which  furnishes  as 
disgraceful  a  chapter  as  ever  occurred  in  our  local  annals,  with  the 
exception  of  the  efforts  of  the  slave-holders  to  make  Illinois  a  slave 
State.  Field  was  a  most  striking  character.  He  was  a  native  of 
Kentucky,  a  nephew  of  Nathaniel  Pope,  who  was  secretary  of  the 


92  CONSTITUTIONAL   HISTORY    OF   ILLINOIS. 

Territory  of  Illinois,  afterward  delegate  in  Congress  and  then  judge 
of  the  United  States  District  Court  for  the  State  of  Illinois.  He 
was  perhaps  the  innocent  cause  of  more  bad  blood  and  of  more 
political  intrigues  than  almost  any  man  of  his  time.  He  was  a 
member  of  the  Lower  House,  or  General  Assembly,  from  Union 
county,  from  1822  to  1828,  and  from  1828  to  1830  he  represented 
Union,  Johnson  and  Alexander  counties.  He  was  Secretary  of 
State  from  1828  to  1840.  He  had,  by  a  process  of  evolution, 
gradually  become  a  whig,  and  the  democrats  wanted  to  get  him  out 
of  the  way  and  obtain  the  office. 

After  several  years  of  strife  and  turmoil,  in  which  the  late 
Judge  Douglas,  Judge  Trumbull  and  McCIernand  became  con- 
spicuous, he  was  legislated  out  of  office  and  was  then  appointed 
secretary  of  Wisconsin  Territory.  Then  he  moved  to  New  Orleans, 
where  he  became  distinguished  as  a  criminal  lawyer,  was  elected  a 
member  of  the  48th  Congress  and  on  the  Tth  of  December  1863,  he, 
in  conjunction  with  his  colleague,  Thomas  Cottman,  was  put  on  the 
roll  of  the  House  as  a  member  of  Congress  from  Louisiana.  They 
both  voted  on  preliminary  questions  and  for  speaker,  but  after  the 
organization  was  perfected,  the  House  refused  to  swear  them  in  as 
members,  and  subsequently  decided  that  they  were  not  entitled  to 
seats.  After  the  war  was  over  he  became  attorney-general  for 
the  State  of  Louisiana,  and  died  in  1877,  at  New  Orleans,  after  a 
long  and  painful  illness.  He  was  a  man  of  great  ability,  but  some- 
what erratic,  as  he  appears  to  have  been  a  "convention  man "  in 
1823-4,  and  made  the  motion  to  unseat  Hansen  against  all  par- 
liamentary usages,  in  order  to  carry  the  call  for  a  convention  by  a 
two-thirds  majority.  "We  met  him  at  Springfield,  in  1870,  where 
he  came  on  a  visit,  while  the  constitutional  convention  was  in  ses- 
sion, and  he  was  most  cordially  received  by  his  old  acquaintances. 
It  is  not  necessary  to  go  into  details  in  regard  to  Field's  claim  to 
office,  for  there  are  scores  of  people  still  living  who  know  all  about  it. 

The  Field  controversy  had  hardly  closed,  however,  before  a 
much  greater  one  arose,  and  which  led  to  an  open  and  direct  attack 
upon  the  Supreme  Court,  and  which  finally  led  to  its  complete  re- 
organization. 


CHAPTER  XX 

The  Partisan  War  on  the  Supreme  Court  and  the  Reor- 
ganization of  the  Same. 

THE  Constitution  of  1818  provided  that  "the  justices  of  the 
Supreme  Court,"  as  they  were  called,  should  he  appointed  by 
the  Legislature,  and  hold  office  during  life;  provided,  however,  that 
the  justices  first  appointed  should  hold  office  only  five  years.  The 
selection  by  the  Legislature  was  a  bad  feature,  but  when  we  con- 
sider the  character  of  the  men  who  were  actually  appointed,  the 
provision  that  those  first  appointed  should  only  hold  for  five  years 
was  a  wise  one.  The  court  consisted  of  a  chief  justice  and  three 
associate  justices.  John  Phillips  was  chief  justice;  William  P.  Fos- 
ter, Thomas  C.  Brown  and  John  Reynolds  associate  justices. 

Judge  Phillips  appears  to  have  been  a  lawyer,  but  came  to  the 
State,  in  1812,  a  captain  in  the  regular  army.  Although  a  soldier, 
politics  was  his  best  hold. 

He  was  nominated  by  the  pro-slavery  party  for  governor  in 
1822,  was  defeated  by  Coles,  when  he  resigned  in  disgust  and  left 
the  State.  He  went  to  Tennessee. 

Judge  Brown  was  a  large  man,  affable,  yet  somewhat  stately, 
with  but  little  industry  and  possessed  of  but  few  of  the  qualifica- 
tions for  a  judge.  He  was  assigned  to  the  northern  circuit;  was 
laughed  at  and  despised  by  many  lawyers,  who  sought  to  impeach  him 
for  unfitness,  but  he  remained  on  the  bench  until  1848,  when  the 
new  Constitution  took  effect. 

The  selection  of  John  Reynolds — afterward  known  as  the  Old 
Ranger — was  at  that  time  regarded  with  derision  and  as  a  farce,  for 
he  had  studied  law  only  a  few  months,  had  had  no  experience  or 
practice  whatever,  and  was  absolutely  without  any  of  the  qualifica- 
tions requisite  for  judge  of  the  highest  court  in  the  State. 

But  the  climax  was  capped  in  the  selection  of  a  man  by  the 
name  of  William  P.  Foster,  who  had  not  been  in  the  State  much 
more  than  three  months.  Nobody  knew  it  at  the  time,  but  he 
afterward  proved  to  be  a  consummate  scoundrel  and  swindler,  and  no 
lawyer  at  all.  He  had  never  studied  law  and  had  no  license,  yet  he 

(93) 


94  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

contrived  to  stay  in  the  State  for  about  a  year,  never  offering  to  per- 
form any  of  his  duties,  yet  drawing  his  salary  regularly.  He 
suddenly  decamped  and  was  heard  of  several  times  afterward  in 
connection  with  numerous  crimes  and  villainies. 

Thomas  Reynolds  succeeded  Judge  Phillips  as  chief  justice, 
and  William  "Wilson  to  succeed  Foster.  Wilson  was  a  man  of  con- 
siderable ability  and  proved  to  be  a  sound  judge  and  commanded 
the  respect  of  the  bar. 

At  the  session  of  1824-5  the  Legislature,  under  the  provisions  of 
the  Constitution,  re-organized  the  judiciary  by  creating  five  Circuit 
Court  judges,  who  were  to  hold  all  the  Circuit  Courts  in  the  State; 
and  the  Supreme  Court,  composed  of  four  judges,  was  to  be  held 
twice  a  year  at  the  seat  of  government.  William  Wilson  was 
elected  chief  justice;  Thomas  C.  Brown,  Samuel  D.  Lockwood  and 
Theophilus  W.  Smith,  were  elected  associate  judges  of  the 
Supreme  Court.  John  York  Sawyer,  Samuel  McRoberts,  Richard 
M.  Young,  James  Hall  and  James  O.  Wattles,  were  elected  judges 
of  the  circuits,  and  James  Turney  to  be  attorney-general. 

The  appointment  of  Judge  McRoberts  was  one  not  fit  to  be 
made.  He  was  always  a  most  bitter  and  relentless  partisan.  He 
removed  Joseph  Conway  and  appointed  Emanuel  J.  West,  one  of 
his  particular  friends,  to  the  office  of  clerk  of  Madison  county.  The 
people  resented  this  to  such  an  extent  that  they  immediately  elected 
Conway  to  the  Senate  and  kept  him  there  for  eight  years. 

The  salary  of  these  judges  was  fixed  at  $1,000  per  year,  pay- 
able, however,  in  depreciated  currency,  which  reduced  it  to  about 
$400.  The  Missouri  Compromise  measures  had  stirred  up  the 
country  so  that  judges  and  everybody  else  had. taken  sides;  the 
movement  to  make  Illinois  a  slave  State  had  engendered  a  great 
deal  of  bad  feeling  in  which  Judge  Smith  had  engaged  in  an  open 
street  brawl  with  one  Hooper  Warren,  whom  he  undertook  to  cow- 
hide for  personalities  in  the  streets  of  Edwardsville.  Then  came 
the  triangular  contest  for  the  presidency  between  Henry  Clay, 
Andrew  Jackson  and  John  Quincy  Adams  in  1824,  in  which  it  was 
charged  that  Wilson,  Lockwood  and  Brown  indorsed  the  action  of 
Daniel  i3.  Cook  in  giving  the  vote  of  the  State  to  Adams,  while 
Smith  was  for  Jackson. 

The  public  seemed  to  make  no  discrimination  or  allowance  for 
the  opinions  of  judges  any  more  than  anybody  else.  Wilson, 
Lockwood  and  Brown,  it  is  said, -maintained  strict  silence,  but  Smith, 


PARTISAN    WAfi,   ON   THE   SUPREME   COURT*.  95 

who  was  one  of  the  most  pestiferous  demagogues  that  ever  lived,  was 
"  blatant  mouthed." 

The  very  fact  that  the  judges  were  appointed  for  life  made 
them  more  and  more  unpopular  and  the  whole  system  was  attacked 
and  declared  a  fraud  and  an  imposition.  But  this  was  not  all.  The 
Constitution  made  them  a  council  of  revision,  and  required  that  all 
bills  which  should  have  passed  the  Senate  and  House  of  Kepresent- 
atives,  shall,  before  they  become  laws,  be  presented  to  said  council 
for  their  revision  and  consideration,  and  if  they  disproved  of  the 
same  they  could  not  become  laws  without  receiving  the  votes  of  a 
majority  of  the  whole  number  of  members  elected. 

The  provision  was  a  wise  one  in  many  respects,  but  as  it  gave 
the  judges  of  the  Supreme  Court  a  quasi  veto  power  on  the  acts  of 
the  Legislature,  it  exposed  the  judges  to  the  most  severe  criticisms 
every  time  they  acted  contrary  to  the  Legislature,  and  they  were 
often  misrepresented,  vilified  and  threatened  with  impeachment  and 
a  reorganization  of  the  judiciary  was  resolved  upon.  in  the 
reorganization  in  the  first  instance,  the  State  was  divided  into  five 
circuits,  and  five  circuit  judges  were  appointed,  leaving  to  the 
supreme  justices  only  appellate  jurisdiction  with  no  circuit  duties. 

At  the  session  of  the  Legislature  of  1826-27,  four  of  the  circuit 
judges  were  legislated  out  of  office  and  their  duties  assigned  to  the 
four  Supreme  Court  judges. 

The  reason  assigned  for  this  change  was  economy ;  but  that  was 
not  the  true  reason  at  all,  and  every  one  knew  that  it  was  not. 

The  combined  salary  of  all  the  nine  judges  was  only  $6,200, 
and  the  saving  was  ostensibly  $2,400,  but  it  proved  such  an  injury 
to  the  public  in  consequence  of  delays  and  postponement  of  cases, 
and  was  found  so  deleterious,  that  there  was  a  universal  outcry  to 
return  to  the  old  system.  The  democratic  Legislature  was  unable 
to  starve  the  whig  justices  out  of  office  or  compel  them  to  resign 
by  any  species  of  petty  persecution,  and  for  a  time  they  ceased  to 
badger  the  judges.  But  this  state  of  things  was  short-lived,  and  in 
1840-41,  matters  reached  a  climax. 

The  Supreme  Court  decided  against  McClernand,  who  instituted 
the  suit  against  Field,  and 

The  war  which  for  a  space  did  fail 
Now  trebly  thundering  swelled  the  gale. 

The  democrats  resolved  to  reform  the  judiciary. 

The  Constitution  of  the  State  provided  that  all  free  white  male 


CONSTITUTIONAL  HISTORY  OP  ILLINOIS. 

inhabitants,  over  the  age  of  twenty-one  years,  who  had  resided  in 
the  State  for  six  months,  should  be  entitled  to  vote  at  all  general 
and  special  elections. 

The  whigs  contended  that  this  did  not  authorize  any  but  citi- 
zens to  vote,  while  the  democrats  contended  that  it  included  aliens 
as  well  as  citizens. 

There  were  in  the  State  at  this  time  about  10,000  alien  votes, 
nine-tenths  of  which  were  democratic,  and  this  matter  assumed 
great  importance.  A  case  came  up  to  the  Supreme  Court  from 
Galena,  in  December,  1839,  and  had  been  argued,  but  the  democratic 
lawyers  discovered,  as  it  is  said,  by  the  aid  of  Judge  Smith,  that 
a  date  was  wrong  in  the  record  and  a  continuance  was  had  until 
December,  1840.  This  was  thought  at  the  time  to  have  been  one 
of  the  sharpest  things  ever  done,  because  people  believed  that  the 
majority  of  the  judges  had  determined  to  decide  against  the  aliens 
and  they  could  in  this  way  be  secure  for  at  least  one  more  election. 

"  The  plan  of  campaign,"  as  it  is  now  called  in  Ireland,  which 
was  agreed  to,  was  broad  and  comprehensive.  They  would  abolish 
all  the  circuit  courts,  repeal  or  legislate  the  judges  out  of  office, 
and  create  five  additional  judges  of  the  Supreme  Court,  all  of  whom 
were  required  to  hold  circuit  courts  in  place  of  the  circuit  judges 
legislated  out  of  office.  A  long  and  violent  struggle  ensued,  but 
the  bill  was  finally  passed  through  both  Houses  and  returned  by  the 
council  of  revision,  with  their  objections,  by  a  considerable  major- 
ity in  the  Senate,  and  by  one  majority  in  the  House.  By  this  means, 
Ford  says,  the  new  Secretary  of  State  was  secured  in  his  office,  and 
the  democratic  party  were  secured  in  the  continued  support  of  the 
alien  vote ;  for  all  the  new  judges  elected  at  this  session  were  as 
thoroughly  satisfied  of  the  right  of  each  governor  to  appoint  his 
own  Secretary  of  State,  and  of  the  right  of  the  alien  inhabitants  to 
vote,  as  the  whig  judges  could  be  to  the  contrary. 

During  the  pendency  of  this  question  before  the  Legislature 
the  whig  judges  decided  the  alien  case  from  Galena,  but  did  not 
decide  the  main  question,  and  it  was  charged  by  the  democrats  that 
the  whig  judges  had  hunted  up  on  purpose  a  trivial  point  to  evade 
responsibility,  in  the  hope  that  when  the  dominant  party  could  see 
that  they  were  no  longer  threatened  with  a  decision  contrary  to 
their  wishes,  they  would  abandon  their  reform  measure. 

Stephen  A.  Douglas,  who  had  been  one  of  the  counsel  for  the 
aliens,  had,  it  appeared,  been  in  constant  and  daily  communication 


97 

with  Judge  Smith,  who  had  long  aimed  to  be  United  States  Sen- 
ator, and  one  evening,  in  a  speech  in  the  lobby  of  the  House,  boldly 
affirmed  that  the  judges  had  at  one  time  all  their  opinions  written 
and  ready  to  deliver,  and  that  all  but  Judge  Smith  were  against  the 
aliens,  and  they  would  have  so  decided  if  a  defect  in  the  record 
had  not  been  discovered.  He  affirmed  this  in  the  most  positive 
manner,  and  stated  that  he  knew  exactly  what  he  was  about ;  that 
he  had  the  information  upon  authority  that  could  not  be  denied, 
and  nobody  dared  deny  it ;  and  he  therefore  proceeded  to  denounce 
the  whig  judges  in  the  strongest  language  at  his  command.  His 
statements  attracted  great  attention,  and  were  reiterated  by  John 
A.  McClernand  in  the  House. 

John  A.  McClernand  was  at  that  time  a  member  of  the  House 
of  Representatives  and  in  the  heat  of  debate  also  made  the  most 
direct  and  specific  cliarges  against  the  judges,  charging  them  with 
misconduct,  with  violations  of  their  oaths  of  office  and  of  their 
attempt  to  disfranchise  thousands  of  inhabitants  of  the  State,  and 
suggesting  that  they  had  committed  high  crimes  and  misdemeanors 
enough  to  warrant  their  impeachment  and  removal  from  office. 
The  judges  had  before  this  been  repeatedly  assailed  by  speeches 
in  the  lobby,  by  anonymous  newspaper  articles  and  unsigned  hand- 
bills, which  had  been  circulated  everywhere  in  the  city  and  around 
the  capital  and  posted  on  the  corners  of  the  street,  but  they  had, 
much  to  their  credit,  maintained  a  most  dignified  silence. 

But  the  time  came  at  length  for  them  to  break  silence,  and  John 
J.  Hardin,  who  was  a  member  of  the  House  of  Representatives 
immediately  addressed  a  note  to  the  judges,  asking  them  if  the 
statements  which  had  been  made  by  Douglas  and  McClernand  were 
true.  To  this  communication  they  returned  the  following  reply : 

SPRINGFIELD,  Jan.  26,  1841. 
John  J.  Hardin,  Esq., 

DEAR  SIR  : — Your  letter  of  to-day  has  just  been  received  and  we 
proceed  to  answer  it  without  hesitation.  In  doing  so,  we  can  not, 
however,  but  express  our  great  astonishment  at  the  character  of 
the  statement  to  which  you  refer.  Yon  say  that  Mr.  McClernand, 
a  member  of  the  House  of  Representatives,  has  asserted  in  debate  : 
"  I  am  authorized  to  say  and  I  do  say  on  my  own  responsibility,  if 
any  such  responsibility  is  needed,  that  the  judges  of  the  Supreme 
Court  prepared  an  opinion  against  the  right  of  foreigners  to  vote, 
7 


98  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

at  the  last  June  term  of  that  court,  but  on  account  of  objections 
made  by  counsel  to  a  mistake  in  the  record,  they  withheld  their 
opinion  but  did  so  most  reluctantly.  The  opinion  has  gone  abroad 
that  these  judges  made  the  decision,  recently  delivered,  on  the  sub- 
ject of  the  right  of  foreigners  to  vote,  in  order  to  defeat  the  bill 
under  consideration,  and  to  prevent  these  judges  going  on  the  cir- 
cuit." 

To  this  statement  we  give  the  most  unqualified  denial  in  all  its 
points;  neither  of  the  members  of  the  court  having  ever  prepared 
or  written  any  opinion  against  the  right  of  aliens  to  vote  at  elections. 
As  to  the  insinuations  that  the  decision  of  any  case  was  made  at 
the  time  to  defeat  the  judiciary  bill  we  reply,  it  is  in  all  its  parts 
equally  unjust  and  without  a  pretense  for  its  justification. 

We  have  thus  promptly  complied  with  your  request  and  we 
can  not  close  this  communication  without  remarking  the  great 
injustice  done  to  ourselves,  not  only  by  the  statement  referred  to, 
but  the  numerous  other  slanders,  which  in  our  situation  we  have  no 
means  of  repelling.  We  have  the  honor  to  be 

Tour  obedient  servants, 

THOS.  W.  SMITH, 
SAMUEL  D.  LOCK.WOOD, 
WM.  WILSON, 
THOMAS  C.  BKOWN. 

This  communication  was  a  stunner  and  created  a  great  sensa- 
tion. 

Douglas  and  McOlernand  were  called  to  account  in  both  Houses 
of  the  Legislature  and  it  was  demanded  of  them  to  give  their 
authority,  and  they  gave  Judge  Smith  as  their  authority,  and  they 
were  backed  up  in  their  assertions  by  several  very  prominent  men 
who  had  heard  Smith  say  the  same  thing.  Judge  Smith  now 
became  very  unpopular,  was  accused  of  hypocrisy  and  prevarication 
and  denounced  by  men  in  his  own  party  as  a  liar,  an  intriguer  and 
utterly ( unworthy  of  confidence  or  belief.  He  lost  caste  and  never 
regained  it. 

The  history  of  this  man  Smith  has  never  been  written,  but  if  it 
should  be,  it  would  furnish  one  of  the  most  striking  examples 
of  the  demagogue  on  the  bench,  that  was  ever  presented  to  the 
people  of  this  country.  He  had,  as  one  of  the  old  pioneers  once 
told  me,  always  a  penchant  for  politics,  was  always  scheming  and 
plotting,  and  greatly  desired  to  be  United  States  Senator,  and  if 


PARTISAN  WAR  ON  THE  SUPREME  COURT.  99 

lie  could  not  be  that,  he  wanted  to  be  governor;  but  having 
obtained  a  seat  on  the  Supreme  Bench,  he  was  reluctant  to  give  it 
up,  and  undertook  to  uee  it  as  a  stepping  stone  to  something  else- 
His  devices  and  intrigues  to  this  end  were,  according  to  all  accounts, 
unceasing.  In  fact,  he  never  lacked  a  plot  to  advance  himself  or 
blow  up  some  other  person.  He  was  laborious,  indefatigable  and 
untiring  in  his  scheming;  but  his  plans  were  too  complicated  and 
intricate  to  be  successfully  executed.  He  was  always  unsuccessful, 
and  as  misery  loves  company,  he  was  delighted  alike  at  the  mis- 
haps of  friends  and  foes,  and  "was  ever  chuckling  over  the  blasted 
hopes  of  some  one  else."  He  was  impeached  by  the  House  of 
.Representatives  in  1833  on  several  charges  of  gross  misdemeanor  in 
office,  and  only  escaped  conviction  by  the  Senate  by  that  provision 
of  the  Constitution  which  required  a  two-thirds  vote  of  that  body  to 
sustain  the  charges. 

It  is  no  liglit  thing  for  a  man  like  Judge  Smith,  who  was  called 
to  occupy  one  of  the  highest  positions  in  the  State,  to  be  thus  sum- 
moned before  the  tribunal  of  posterity  and  have  judgment  passed 
upon  him.  But  men  must  not  trifle  with  justice  or  with  a  high  and 
holy  office.  The  generation  to  which  he  belonged  has  disappeared, 
and  the  time  has  come  when  the  rash  and  indiscriminate  judgments 
which  his  contemporaries  passed  upon  his  character  may  be  calmly 
revised  by  history;  but  in  the  interest  of  justice,  and  as  a  warning 
to  all  demagogues  who  may  seek  to  prostitute  a  high  judicial  posi- 
tion to  their  own  purposes  and  their  own  aggrandizement,  we  have 
been  compelled  to  make  this  note,  and  this  shall  be  our  excuse  for 
disturbing  his  consecrated  mould. 

Of  him  it  may  be  said,  in  the  words  of  Hudibras : 

Our  State-artificer  foresaw 

Which  way  !he  world  began  to  draw, 

For  as  old  sinners  have  all  points 

0'  th'  compass  in  their  bones  and  joints, 

Can  by  their  pangs  and  aches  find 

All  turns  and  changes  of  the  wind, 

And  better  than  by  Napier's  bones 

Feel  in  their  own  the  age  of  moons; 

So  guilty  sinners  in  a  State, 

Can  by  their  crimes  prognosticate, 

And  in  their  consciences  feel  pain 

Some  days  before  a  shower  of  rain; 

He  therefore  wisely  cast  about 

All  ways  he  could  to  ensure  bis  throat. 


100  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

The  Council  of  Revision  which  still  existed  and  which  still 
retained  a  shadow  of  authority  did  not  approve  the  bill  and 
returned  it  to  the  House  with  their  objections.  The  bill  was,  how- 
ever, repassed  by  a  majority  of  one,  and  that  one  vote  was  given  by 
a  member  who  opposed  the  bill  on  its  passage  and  who  immediately 
after  was  appointed  clerk  of  the  Supreme  Court  as  newly  organized, 
the  five  new  judges,  without  any  consultation  whatever  with  their 
associates,  turning  out  the  old  clerk  and  putting  this  very  conscien- 
tious and  reformatory  member  in  his  place.  But  this  was  not  all. 
The  old  judges,  it  mattered  not  where  they  lived,  were  assigned  to 
circuits  as  far  removed  from  their  homes  as  possible,  and  they 
were  treated  with  every  mark  of  discourtesy  within  their  power. 

Old  Judge  Brown,  whose  home  was  in  Shawneetown  in  the 
extreme  southern  part  of  the  State,  was  assigned  to  the  Galena 
district.  This  was  done  in  order  to  secure  his  resignation,  but  it 
proving  unsuccessful,  an  attempt  was  made  to  remove  him  by 
impeachment  on  the  following  charges  and  specifications,  to  wit: 
i4  That  he  had  not  the  natural  strength  of  intellect  and  lacked  the 
legal  and  literary  learning  requisite  and  indispensable  to  the  high 
and  responsible  duties  devolving  upon  him  as  a  judge  of  the 
Supreme  Court;  that  his  opinions  delivered  in  that  court  were 
written  and  revised  by  others  and  that  his  decisions  on  the  circuit 
had  been  the  mere  echo  of  some  favorite  attorney;  and  that  by 
nature,  education  and  habit  he  was  wholly  unfit  for  his  high 
position." 

It  is  probable  that  never  since  the  impeachment  of  Warren 
Hastings  for  high  crimes  and  misdemeanors,  had  there  been  an 
instance  like  this,  of  an  attempt  so  degrading.  Eis  office  was  wanted 
for  another,  and  so  eager  were  the  applicants  that  they  could  not 
wait  for  the  old  man  to  pay  the  debt  of  nature.  They  were  more 
rapacious  and  merciless  in  their  demands  than  the  Mahrattas,  for 
they  had  some  respect  for  the  rules  of  justice  and  the  sentiments  of 
humanity.  But  the  common  sense  of  mankind,  which,  in  matters 
of  this  sort,  seldom  goes  wrong,  will  always  recognize  a  distinction 
between  crimes  which  originate  in  an  inordinate  zeal  for  the  com- 
monwealth and  crimes  which  originate  in  selfish  cupidity.  Indeed, 
if  a  man  is  honest  and  upright,  the  community  is  quite  apt  to  over- 
look transactions  which  may  even  be  characterized  as  indelicate  and 
irregular.  It  is  quite  likely  from  what  we  know  and  what  we  have 
heard  of  Judge  Brown,  that  he  had  long  since  outlived  his  useful- 


PARTISAN  WAR  ON  THE  SUPREME  COURT.  101 

ness  and  would  have  commanded  the  respect  of  the  community  had 
he  voluntarily  retired  to  private  life  and  enjoyed  the  closing  hours 
of  a  serene  old  age  in  the  perusal  of  the  classics  like  "De  Senectue," 
or  even  Bunyan's  Pilgrim's  Progress,  but  he  was  reluctant  to  be 
driven  from  his  post  of  duty  or  have  his  effects  administered  upon 
before  the  appointed  hour.  An  impression  got  abroad  that  the 
weak  old  man  was  being  persecuted  and  the  impeachment  proceed- 
ings which  had  barely  been  initiated,  were  dropped  and  came  to 
nothing. 

o 

All  these  things  that  we  have  narrated,  however,  did  not  have 
the  effect  to  stay  the  tide  of  reform  which  now  set  in.  The  demo- 
crats were  determined  to  teach  the  judiciary  a  lesson  and  to  give 
them  to  understand  and  be  informed  that  if.  they  undertook  to 
thwart  "  the  will  of  the  people  "  they  must  take  the  consequences. 
The  reform  bill  passed,  and  five  additional  judges  of  the  Supreme 
Court  were  forthwith  elected,  consisting  of  Thomas  Ford,  Sidney 
Breese,  Walter  B.  Scates,  Samuel  H.  Treat  and  Stephen  A.  Doug- 
las. Some  of  these  newly  appointed  judges  applied  themselves 
with  great  diligence  to  the  discharge  of  their  duties  and  afterward 
became  distinguished  as  jurists,  notably  Judges  Breese  and  Treat. 

Judge  Douglas  was  far  better  fitted  for  the  stormy  scenes  occur- 
ring in  the  halls  of  Congress  than  in  the  consultation  chamber  or  in 
listening  to  dry  and  uninteresting  arguments  on  the  bench,  and  in  a 
short  time  resigned  and  entered  upon  a  career  in  that  great  world  of 
politics  that  is  almost  without  a  parallel.  Judge  Douglas  wrote  but 
very  few  opinions  while  on  the  bench,  but  there  is  one  that  was 
written  by  him  that  is  quite  famous  and  that  is  the  opinion  in  the 
case  of  Penny  v.  Little,  3  Scam.  301.  It  shows  great  research;  shows 
how  Illinois  adopted  the  common  law,  how  it  is  still  in  force,  and 
then  proceeds  to  show  that  a  landlord  has  a  right  to  distrain  for 
rent  where  the  rent  is  due  and  no  power  is  contained  in  the  lease, 
the  same  being  authorized  by  the  common  law.  This  is  the  lead- 
ing case  upon  this  subject  in  this  State  and  has  been  often  cited  in 
this  and  other  States.  His  name  and  fame  are  indubitably  linked 
with  that  of  his  great  rival,  Lincoln,  like  that  of  Pitt  and  Fox. 

History  owes  to  him  this  attestation:  that  in  an  hour  of  peril, 
when  this  Government  was  threatened  with  overthrow  by  the  most 
gigantic  conspiracy  which  the  world  ever  saw,  he  cast  to  the  winds 
every  consideration  except  his  country.  He  declared  that  there 
were  but  two  parties  left,  namely  patriots  and  traitors,  andheunhes- 


102  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

itatingly  ranged  himself  on  the  side  of  his  country  and  with  his 
dying  breath  besought  the  people  to  stand  by  the  Government.  He 
was  possessed  of  genius  of  a  very  high  order,  of  strong  passions,  of 
quick  sensibility,  of  magnetic  power  and  vehement  enthusiasm  which 
in  a  good  cause  could  carry  everything  before  him. 

All  men  and  all  parties  have  united  in  decreeing  to  him  post- 
humous honors  although  he  was  gravely  criticized  while  living.  It 
Lincoln  was  the  great  representative  of  the  people  in  their  contest 
for  liberty — and  acted  as  its  guardian,  Douglas  acted  as  the  great 
commoner  and  steadying  power  of  the  State  when  the  crisis  came. 
If  he  was  forced  into  the  position  that  he  final!}7  assumed,  it  was 
not  unnatural,  and  the  language  that  he  made  use  of  was  not  the 
cant  of  patriotism.  He  died  suddenly  amid  the  fiery  paroxysms 
of  malcontents,  some  of  whom  thought  that  he  should  have  still 
held  out  in  his  opposition  to  his  great  rival;  out  time  has  decreed 
that  Lincoln  and  Douglas  occupied  co-ordinate  positions  in  an  un- 
divided empire,  and  while  posterity  takes  note  of  his  errors  it 
deliberately  announces  that  among  the  eminent  men  of  this  gen- 
eration scarcely  one  has  left  a  more  stainless  and  a  more  splendid 
name. 

At  the  same  session,  when  the  Reform  Bill  was  passed,  and  as  a 
reward  for  unexampled  services  to  the  party  while  occupying  the 
bench,  Samuel  McRoberts  was  nominated  and  elected  United  States 
Senator.  He  was  known  at  that  time,  and  ever  will  be  known,  as 
the  maligner  and  oppressor  of  Governor  Coles,  before  whom  a  part 
of  the  litigation  took  place  relating  to  penalties  incurred  for  bring- 
ing slaves  into  the  State  and  liberating  them  here. 

The  violent  and  unjustifiable  attacks  which  at  this  period  were 
made  upon  the  judiciary,  were  disgraceful  to  all  those  engaged  in  it, 
and  will  always  be  regarded  as  a  dark  shadow  cast  over  our  judicial 
annals.  The  part  which  Judge  Theophilus  W.  Smith  took  in  this 
matter  is  certainly  entirely  inexcusable  and  he  may  be  regarded  as  one 
of  the  arch  conspirators  against  his  brethren  on  the  bench  and  an 
aider  and  abetter  of  those  off  the  bench,  to  degrade  the  majority 
of  judges  composing  the  highest  tribunal  in  the  land,  and  among 
whom  may  be  reckoned  some  who  were  the  purest  and  most  upright 
and  conscientious  men  that  ever  lived.  But  decency  and  common 
sense  finally  triumphed. 


CONSTITUTIONAL  CONVENTION  OF  1847.  103 

"And  sovereign  law  the  States  collected  will 

O'er  thrones  and  globes  elate, 
Sits  empress-crowning  good,  repressing  ill, 

Smit  by  her  sacred  frown 
The  fiend,  Discretion,  like  a  vapor  sinks, 

And  e'en  the  all  dazzling  crown 
Hides  his  faint  rays  and  at  her  bidding  shrinks." 


CHAPTEK  XXI 
The  Constitutional  Convention  of  1847. 

rpWENTY-FIVE  years  after  the  Constitution  of  1818  had  been 
-L  adopted,  a  general  movement  was  started  for  calling  a  conven- 
tion "to  alter,  amend  and  revise"  that  instrument.  It  was  claimed 
that  it  was  not  to  be  a  party  measure  at  all,  but  in  the  sequel,  both 
parties,  whigs  and  democrats,  nominated  delegates  upon  strictly 
party  lines,  with  the  exception  of  Morgan  county.  The  special 
election  for  delegates  was  fixed  for  the  third  Monday  of  April, 
1847,  and  the  convention  was  to  meet  in  Springfield,  on  the  first 
Monday  of  June  following. 

Morgan  county  was  entitled  to  four  delegates,  and  there,  by 
an  agreement  of  parties,  Judge  Samuel  D.  Lockwood,  William 
Thomas,  James  Dunlap  and  Newton  Cloud  were  elected.  This 
circumstance  was  of  such  an  unusual  and  extraordinary  character, 
politics  having  been  carried  into  every  election  of  every  sort,  char- 
acter and  kind,  from  the  formation  of  the  State  down,  that  it  gave 
these  delegates,  aside  from  their  merits  as  men,  a  high  rank  at  once. 
Newton  Cloud  was  elected  president  of  the  convention,  and  the 
others  assigned  to  prominent  positions,  Judge  Lockwood  being 
chairman  of  the  executive  committee. 

There  were  many  men  in  that  convention  of  great  ability, 
some  of  whom  afterward  acquired  a  national  reputation,  among 
whom  may  be  mentioned  Judge  David  Davis,  John  M.  Palmer, 
Stephen  T.  Logan,  and  others.  The  names  of  the  delegates  are 
herewith  appended. 

The  proceedings  were  reported  for  the  public  press,  in  part  by 
the  late  James  Sheahau  of  Chicago,  the  well  known  newspaper 


104  CONSTITUTIONAL  HISTOBY  OF  ILLINOIS. 

writer  who  came  on  from  Washington  for  that  purpose,  and  from 
him  we  learned  that  every  question  was  discussed  from  the  institu- 
tion of  human  governments  and  the  birth  of  republics  down  to  the 
last  ward  caucus.  The  chief  topics,  however,  next  to  State  sov- 
ereignty and  National  union,  which  engaged  the  attention  of  that 
body,  was  the  appointing  power,  the  re-organization  of  the  judicial 
department — limiting  the  right  of  suffrage  to  citizenship,  repudia- 
tion of  the  State  debt  and  tax  titles. 

When  the  constitutional  convention  met  in  1847,  the  financial 
condition  of  the  State  was  at  a  very  low  ebb.  The  interest  on  the 
State  debt  was  greatly  in  arrear.  The  State  banks  had  gone  down 
with  a  crash,  and  bankruptcy  had  overtaken  many  of  the  best  men 
in  the  State,  and  Illinois  was  charged  with  repudiation  and  was  in 
great  danger  of  becoming  "  a  stench  in  the  nostrils  of  the  civilized 
world."  The  governor  of  the  State  said  :  "  The  people  at  home 
began  to  wake  up  in  terror;  the  people  abroad  who  wished  to  settle  in 
anew  country  avoided  Illinois  as  they  would  pestilence  and  famine; 
and  there  was  great  danger  that  the  future  emigrants  would  be  men 
who,  having  no  regard  for  their  own  characters,  would  also  have 
none  for  that  of  the  State  where  they  might  live.  The  terrors  of 
high  taxation  were  before  all  eyes,  botii  at  home  and  abroad.  Every 
one  at  home  wanted  to  sell  his  property  and  move  away,  and  but 
few,  either  at  home  or  abroad,  wanted  to  purchase.  The  impossi- 
bility of  selling  kept  us  from  losing  population,  and  the  fear  of 
disgrace  or  high  taxes  prevented  us  from  gaining  materially." 

After  a  considerable  discussion  and  great  opposition  the  follow- 
ing article  was  introduced  into  the  convention :  "  There  shall  be 
annually  assessed  and  collected  a  tax  of  two  mills  upon  each  dollar's 
worth  of  taxable  property  to  be  applied  as  follows,  to  wit :  The 
fund  so  created  shall  be  kept  separate  and  shall  annually,  on  the 
first  day  of  January,  be  apportioned  and  paid  over  pro  rata  upon 
all  such  State  indebtedness,  other  than  the  canal  and  school  indebt- 
edness, as  may,  for  that  purpose,  be  presented  by  the  holders  of  the 
same  to  be  entered  as  credits  upon  and  to  that  extent,  in  extinguish- 
ment of  the  principal  of  that  indebtedness."  This  was  a  very  wise 
measure  but  strange  to  say,  so  bitterly  was  it  fought  that  it  had  to 
be  submitted  to  the  people  as  a  separate  article  and  was  only  adopted 
by  a  vote  of  42,017  to  30,586,  whereas  it  should  have  been  unani- 
mous. 

It  was  a  great  reform  measure,  and  was,  we  believe,  originally 


CONSTITUTIONAL  CONVENTION  OF  1847.  105 

d  by  Governor  Ford,  and  was  advocated  with  all  his  power 
and  wisdom.  The  next  great  measure  was  that  relating  to  tax 
titles,  which  was  introduced  by  Judge  Lockwood,  and  appears  in 
full  in  Section  4,  Article  9  of  the  Constitution.  Before  this  time,  the 
onus  proba ndi  of  showing  irregularities  in  the  proceedings  leading 
up  to  the  issuing  of  a  tax  deed  rested  upon  the  owner,  and  the 
deed  was  prima  facie  evidence  that  the  land  was  subject  to  taxa- 
tion, that  the  taxes  were  unpaid,  that  the  lands  were  unredeemed, 
that  it  had  been  legally  advertised,  that  it  was  sold  for  taxes,  that 
the  grantee  was  the  purchaser,  and  that  the  sale  was  conducted  in 
the  manner  required  by  law.  It  was  possible  for  a  man  to  lose 
title  to  his  land,  although  residing  on  it  and  having  paid  the  taxes. 

The  next  thing  that  the  convention  did  was  to  wipe  out  com- 
pletely and  entirely  the  provision  in  the  Constitution  of  1818  relat- 
ing to  the  Council  of  Revision.  That  was  especially  odious,  and 
was  hated  and  reviled  and  denounced  without  stint  or  measure. 
But  much  can  be  said  in  its  favor,  and  such  a  mode  of  revision  of 
the  laws,  before  going  into  effect,  seems  to  be  based  upon  consid- 
erations of  the  highest  wisdom,  and  in  any  State  where  the  great- 
est perfection  is  sought  after  and  desired,  ought  not  to  be  objected 
to.  In  a  country,  however,  where  every  man  takes  rank  with 
Solon  and  Lycurgus,  there  can  be  but  few  restraints  imposed  upon 
a  "fierce  democracie,"  and  even  the  veto  power,  upon  hasty  legisla- 
tion, has  often  been  declared  odious  and  undemocratic. 

Our  legislation  seems  to  proceed  upon  the  theory  of  rectifying 
present  defects  and  providing  for  present  necessities,  no  matter  how 
the  same  may  be  brought  about,  nor  how  it  may  affect  the  future 
condition  of  the  people,  nor  what  the  results  may  be.  If  such  laws 
are  ever  submitted  to  the  Supreme  Court  for  construction,  after 
being  put  in  force,  and  the  various  conflicting  provisions  are  weighed 
and  compared,  the  decision  arrived  at  is  based  upon  an  equation  of 
errors,  and  they  soon  become  obsolete  and  of  no  force  and  effect. 
The  only  consolation  about  the  whole  matter  is,  that  the  Supreme 
Court  of  the  State  does,  in  spite  of  everything,  constitute  a  stand- 
ing committee  of  revision,  and  first  and  last  passes  upon  almost 
every  law  that  is  enacted. 

There  is  one  thing,  we  think,  in  connection  with  the  Constitution 
of  1847,  not  generally  known,  and  which  is  particularly  referred  to 
in  Coffin's  biography  of  Judge  Lockwood,  and  that  is  this:  the 


106  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

manner  in  which  God  is  recognized  in  the  Constitution.  It  will  be 
recollected  that  the  Covenanters  had  in  1818  petitioned  to  have 
some  mention  of  the  Supreme  Being  made  in  the  Constitution,  but 
their  petition  was  rejected  and  they  opposed  its  adoption  with  all 
their  might  and  main.  Judge  Lockwood,  knowing  this  fact,  wrote 
out,  and  on  motion  of  William  Thomas,  the  colleague  of  Lockwood, 
the  preamble  was  amended  as  follows:  "  We,  the  people  of  the 
State  of  Illinois,  grateful  to  Almighty  God  for  the  civil,  political 
and  religious  liberty  which  He  has  so  long  permitted  us  to  enjoy, 
and  looking  to  him  for  a  blessing  upon  our  endeavors  to  secure  and 
transmit  the  same  unimpaired  to  succeeding  generations,  in  order 
to  form  a  more  perfect  government,  establish  justice,  insure  domes- 
tic tranquillity,  provide  for  the  common  defense,  promote  the  gen- 
eral welfare  and  to  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
State  of  Illinois."  And  there  it  remains  as  a  part  of  the  organic 
law  to  this  day. 

The  Constitution  which  was  then  framed  was  a  great  improve- 
ment over  that  of  1818,  but  proved  to  be  subject  to  abuse  in  many 
ways — notably  that  of  special  legislation  and  the  granting  of  private 
charters,  which  encouraged  the  greed  of  politicians  and  others  to 
such  an  extent  as  to  almost  absorb  the  time  and  attention  of  the 
members,  and  to  such  an  extent  as  to  sacrifice  all  public  interests. 
It  also  fixed  irrevocably  in  the  Constitution  itself  the  salaries  of  all 
the  officers  of  the  government,  which,  in  a  few  years,  proved  a 
great  evil,  because,  with  the  change  of  the  times  and  the  increased 
cost  of  living,  the  salaries  fixed  in  the  Constitution  were  wholly 
inadequate  to  pay  officers  for  their  services.  The  judicial  system 
proved  inadequate,  and,  as  a  matter  of  fact,  the  State  increased  in 
population  so  fast,  and  the  development  of  the  various  complicated 
interests  was  so  rapid,  and  there  were  so  many  things  which  came 
to  pass  that  nobody  anticipated  or  thought  of,  that  the  Constitution 
became  almost  obsolete.  The  people  had  outgrown  it,  and  it  was 
so  defective  in  so  many  particulars  that  a  new  constitutional  con- 
vention became  imperative. 

This  convention  numbered  among  its  members  many  men  of 
great  experience  and  of  the  highest  integrity,  as  will  be  seen  by 
referring  to  the  list  of  the  same  hereto  appended;  they  served  their 
country  long  and  well,  but  very  few  are  now  left  to  tell  the  tale. 


CONSTITUTIONAL  CONVENTION  OF  1847.  107 

CONVENTION    OF  1847. 

Adams  County — William  Laughlin,  Wm.  B.  Powers,  Jacob  M.  Nichols. 

Adams  and  Highland  Counties — Archibald  Williams. 

Alexander  and  Pulaski  Counties — Martin  Atherton. 

Bond  County — Michael  G.  Dale. 

Boone  County — Daniel  H.  Whitney. 

Brown  County — James  W.  Singleton. 

Brown  and  Schuyler  Counties — James  Brockton,   Alexander  McHatton. 

Bureau  County — Simon  Kinney. 

Calhoun  and  Jersey  Counties — William  Bosbyshell. 

Carroll  and  Ogle  Counties — Garner  Moffet. 

Cass  County — HenryJF.  Dummer. 

Campaign  and  Vermillion  Counties — Thompson  R.  Webber. 

Christian  and  Shelby  Counties — D.  D.  Shu  in  way. 

Clark  County — William  Tutt,  Justin  Harlan. 

Clark,  Edgar  and  Coles  Counties — Uri  Manly. 

Clinton  County — Benjamin  Bond. 

Coles  County — Thomas  A.  Marshall,  Thomas  Trower. 

Cook  County — Patrick  Ballingall,  Francis  C.  Sherman,  Reuben  E.  Heacock, 
E.  F.  Colby. 

Crawford  County — Nelson  Hawley. 

Cumberland  and  Effingham  Counties — William  H.  Blakely. 

DeKalb  County— George  H.  Hill. 

DeWitt  County — George  B.  Lemon. 

DuPage  County — Jeduthan  Hatch. 

DuPage  and  Will  Counties — Samuel  Anderson. 

Edgar  County — William  Shields  and  George  W.  Rives. 

Edwards  and  Wayne  Counties — Alvin  R.  Kenner. 

Fayette  County — John  W.  Edmonson  and  Joseph  T.  Eccles. 

Franklin  County — John  W.  Akin. 

Fulton  County — David  Markley,  Hezekiah  M.  Wead,  Isaac  Linley,  George 
Kreider. 

Gallatin  County — Albert  G.  Caldwell,  Jacob  Smith. 

Greene  County — Franklin  Witt,  L.  E.  Worcester,  D.  M.  Woodson. 

Grundy  and  La  Salle  Counties — George  W.  Armstrong. 

Hancock  County— Thomas  C.  Sharpe,  George  S.  Moore,  Robert  Miller,  Thomas 
Geddes. 

Harding  and  Gallatin  Counties — Andrew  McCallen. 

Henderson  County — Gilbert  Turnbull. 

Henry  and  Knox  Counties — Joshua  Harper. 

Highland  County — Lewis  J.  Simpson. 

Iroquois  and  Will  Counties — Jesse  0.  Norton. 

Jackson  County — Alexander  M.  Jenkins. 

Jasper  and  Crawford  Counties — Richard  G.  Morris. 

Jefferson  County — Franklin  S.  Casey. 

Jefferson,  Marion  and  Franklin  Counties — Zadok  Casey,  Walter  B.  Scales. 

Jersey  County — A.  R.  Knapp. 

Jo.  Daviess  County — Thompson  Campbell,  W.  B.  Green,  0.  C.  Pratt. 

Johnson  County — John  Oliver. 


108  CONSTITUTIONAL    felSTORY  OF  ILLINOIS. 

Kane  County — Alfred  Churchill,  Augustus  Adams,  Thomas  Judd. 

Kendall  County — John  West  Mason. 

Knox  County — Curtis  K.  Harvey,  James  Knox. 

Lake  County — Horace  Butler,  Hulbut  Swan. 

La  Salle  County — William  Stadden,  Abraham  Hoes. 

Lawrence  County — John  Mieure. 

Lee  County — John  Dement. 

Livingston  and  McLean  Counties— Samuel  Lander. 

Logan  County — James  Tuttle. 

McLean  County — David  Davis. 

Mason  County — F.  S.  D.  Marshall. 

Macoupin  County — James  Graham,  John  M.  Palmer.  ] 

McDonough  County — James  M.  Campbell. 

McDonough  and  Warren  Counties — John  Huston. 

McHenry  County — John  Sibley,  Peter  W.  Deitz. 

Madison  County— Cyrus  Edwards,  E.  M.  West,  Benaiah  Robinson,  George,  T. 
Brown. 

Marshall  and  Stark  Counties — Henry  D.  Palmer. 

Marion  County — George  A.  Pace. 

Macon  and  Piatt  Counties — Edward  0.  Smith. 

Massac  County — Thomas  G.  C.  Davis. 

Menard  County — Benjamin  F.  Northcott. 

Mercer  County— Frederick  Frick. 

Montgomery  County — Hiram  Rouutree. 

Montgomery  and  Bond  Counties — James  M.  Davis. 

Moultrie  and  Shelby  Counties — Anthony  Thornton. 

Morgan  County — Newton  Cloud,  James  Dunlap,  William  Thomas. 

Monroe  County — James  A.  James,  John  D.  Whiteside. 

Ogle  County — D.  J.  Pinckney. 

Perry   County — H.  B.  Jones. 

Perry,  Washington  and  Clinton  Counties — John  Grain. 

Peoria  County — William  W.  Thompson,  Lincoln  B.  Knowlton. 

Peoria  and  Fulton  Counties — Onslow  Peters. 

Pike  County — William  R.  Archer,  Harvey  Dunn,  William  A.  Grimsbaw. 

Pope  County — William  Sim. 

Putnam  County — Oaks  Turner. 

Randolph  County— Ezekiel  W.  Robbins,  Richard  B.  Servant 

Richland  County— Alfred  Kitchell. 

Rock  Island  County — John  W.  Spencer,  John  Dawaon. 

Sangamon  County — James  H.  Matheny,  Ninian  W.  Edwards,  Stephen  T. 
Logan. 

Scott  County — N.  M.  Knapp,  Daniel  Dinsmore. 

Schuyler  County — William  A.  Minshall. 

Shelby  County— Edward  Evey. 

St.  Clair  County— William  W.  Roman,  Wm.  C.  Kinney,  John  McCully,  George 
Bunsen. 

Stephenson  County — Seth  B.  Far  well,  Thomas  B.  Carter. 

Tazewell  County — William  H.  Holmes. 

Union  County — John  Canady,  John  W.  Vance. 


CONSTITUTIONAL  CONVENTION  OF  1862.  100 

Wabash  Count}- — Charles  H.  Constable. 

Warren  County — Abner  C.  Harding. 

Washington  County — Zenos  H.  Vernor. 

Wayne  County — James  M.  Hogue. 

Whiteside  County — Aaron  C.  Jackson. 

White  County — S.  Snowden  Hayes,  Daniel  Hay. 

Woodford  County — Samuel  J.  Cross. 

Winnebago  County — Selden  M.  Church,  Robert  J.  Cross. 

Williamson  County — John  T.  Louden. 

Williamson,  Franklin  and  Jackson  Counties — Willis  Allen. 

Will  County — Hugh  Henderson,  William  McClure. 


CHAPTER  XXIL 
Constitutional  Convention  of  1862. 


years  after  the  adoption  of  the  Constitution  of  1848 
-L  another  convention  was  called  "  to  revise,  alter  and  amend  " 
that,  but  as  its  work  was  not  indorsed  by  the  people,  we  shall  not 
enter  very  much  into  details  concerning  it.  It  was  termed  a  "  High 
Rolling  Convention,"  and  assumed  such  powers  that  it  soon  disgusted 
the  people  and  brought  its  work  into  disrepute. 

It  spent  a  great  deal  of  time  over  the  question  whether  the  mem- 
bers should  take  an  oath  to  support  the  Constitution,  and  frittered 
away  much  valuable  time  in  the  discussion  of  the  question  whether 
it  could  pass  ordinances  —  whether  it  could  legislate  —  appropriate 
money  out  of  the  public  treasury  —  and  indulged  in  a  vast  amount 
of  buncombe  and  wearisome  platitudes  involving  the  policy  of  the 
war,  and  insisting  that  instead  of  the  same  being  conducted  accord- 
ing to  Hardee's  tactics,  Generals  Scott's,  Halleck's  or  Grant's  tactics 
it  should  be  conducted  according  to  the  Constitution.  Many  had 
never  heard  of  the  war  powers  of  the  Constitution  and  were  greatly 
surprised  to  find  that  war  meant  war,  and  that  "unconditional  sur- 
render" was  a  very  impolite  way  of  treating  rebels  in  arms,  who 
were  endeavoring  to  overthrow  the  government.  In  short,  the  use 
of  gunpowder  was  very  offensive  and  the  din  of  battle  greatly  inter- 
fered with  profound  thought  and  deep  meditation. 

But  there  is  one  thing  which  it  is  well  to  remember  and  that  is 
this:  "If  there  be  any  truth  by  the  universal  experience  of 
nations,  it  is  this,  that  to  carry  the  spirit  of  peace  into  war  is  a 


110  CONSTITUTIONAL  HISTORY  otf  ILLINOIS. 

weak  and  cruel  policy.  The  time  of  negotiation  is  the  time  for 
deliberation  and  delay.  But  when  an  extreme  case  calls  for  that 
remedy,  which  is  in  its  own  nature  most  violent,  and  which  in 
such  cases  is  a  remedy  only  because  it  is  violent,  it  is  idle  to  think 
of  mitigating  and  diluting.  Languid  war  can  do  nothing  which 
negotiation  or  submission  will  not  do  better,  and  to  act  on  any 
other  principle  is  not  to  save  blood  and  money,  but  to  squander  them." 

At  this  period  there  were  many  who  were  in  favor  of  languid 
war,  but  the  people  generally  were  not.  Time  proved  that  the 
science  of  politics  was  incompatible  with  the  science  of  war,  and 
that  those  who  were  great  in  the  forum  and  on  the  hustings,  were 
powerless  before  belching  batteries  and  the  shot  and  shell  from 
parks  of  artillery. 

Politics  and  partisan  feelings  followed  us  from  the  field  of  poli- 
tics to  the  hall  of  our  assemblage  and  marred  if  they  did  not  ruin 
the  objects  and  purposes  of  our  deliberations.  The  mouth  disease 
was  prevalent  and  in  many  instances  proved  fatal. 

The  majority  of  the  delegates  to  the  Illinois  Convention  of 
1862  affirmed  in  substance  that  the  act  of  the  General  Assembly 
under  and  by  virtue  of  which  it  was  convened,  was  no  longer  bind- 
ing upon  the  convention  after  we  had  assembled  and  organized. 
It  assumed  and  claimed  all  governmental  powers,  and  while  it 
proceeded  on  that  theory,  as  one  witty  member  said  on  its  adjourn- 
ment, "  it  has  still  left  us  in  doubt  when  the  functions  of  a  constitu- 
tional convention  ends,  and  when  revolution  begins." 

The  time  at  which  we  convened  was  not  propitious.  The  war 
was  then  at  its  height,  and  every  member  was  deeply  interested  in 
it.  There  was  marching  and  counter-marching  throughout  the  land. 
There  were  camps  of  recruits,  camps  of  instruction  forming  every- 
where, and  the  railroads  were  loaded  with  soldiers  hastening  to  the 
front.  The  great  campaign  in  the  West  and  in  the  Mississippi 
valley  had  been  in  progress  for  some  time,  and  Grant  had  ascended 
the  Tennessee,  and  had  commenced  his  march  on  Forts  Henry  and 
Donaldson. 

"We  had  members  who  had  volunteered,  and  one  at  least  left  the 
convention  to  take  charge  of  his  company,  and  arrived  in  time  to 
take  part  in  the  storming  of  the  forts.  I  recollect  at  one  time  our 
convention  suspended  business  and  flocked  to  the  windows  to  see 
Col.  ".Robert  Ingersoll  inarch  out  of  Springfield  at  the  head  of  the 
12th  Illinois  Cavalry. 


CONSTiTtJTIOftAL  CONVENTION  OF  1862.  Ill 

Grant  was  charged  with  great  rudeness  by  General  Buckner,  his 
former  classmate  at  West  Point,  when  in  response  to  a  communica- 
tion asking  for  delay,  he  res  ponded  with  the  laconic  reply  "Uncondi- 
tional surrender ;  we  propose  to  move  immediately  upon  your  works." 
He  moved,  and  General  Buckner  moved,  and  the  next  thing  that 
we  knew  was  the  arrival  of  some  ten  thousand  prisoners  in  our 
midst,  "clad  in  their  Joseph  coat,  of  many  a  dye."  Many  were 
thinly  clad,  with  straw  hats  on,  sick,  sore  and  diseased,  sad  at  heart, 
and  were  marched  to  temporary  cantonments  and  entered  upon  a 
new  life  as  prisoners  of  war  in  camps  a  short  distance  out  of  Spring- 
field. Train  load  after  train  load  arrived  in  quick  succession,  and 
United  States  soldiers  swarmed  everywhere.  Many  prisoners  were 
afterward  transferred  to  Chicago,  and  many  died  of  disease,  of 
homesickness  and  exposure.  The  minds  of  men  were  naturally 
more  absorbed  with  the  progress  of  the  war,  than  in  altering,  amend- 
ing, revising  or  forming  a  new  constitution. 

The  policy  of  the  war  had  been  challenged  long  before  the  elec- 
tion of  delegates,  and  when  the  convention  assembled,  the  majority 
were  overwhelmingly  against  the  republican  party,  and  partisan  pro- 
clivities soon  became  manifest. 

The  convention  was  composed  of  seventy-five  delegates,  and 
numbered  among  its  members  many  men  of  distinction,  as  will  be 
seen  by  reference  to  the  list  of  delegates  hereto  attached.  Some 
afterward  attained  national  renown.  One  at  least  now  tills  the 
next  highest  office  in  the  republic,  the  office  of  Chief  Justice  of 
the  United  States.  There  was  Benjamin  Edwards,  the  son  of 
the  great  Ninian  Edwards,  the  first  governor  of  the  Illinois 
Territory.  There  was  John  Dement,  one  of  the  early  pioneers, 
"William  J.  Allen,  now  United  States  District  Judge,  George  "Wall, 
now  on  the  Appellate  bench  in  this  district,  each  of  whom  were 
afterward  members  of  the  convention  of  1869-1870.  There  was 
also  ex-Governor  French,  Anthony  Thornton,  O.  B.  Ficklin,  Judge 
Pur,)le,  and  the  gifted  orator  Joel  Manning,  from  Peoria,  General 
Orme,  Porter  Sheldon,  afterward  a  member  of  Congress,  E.  P. 
Ferry,  now  Governor  of  the  State  of  Washington,  and  one  of  the 
early  governors  of  the  Territory,  and  many  others  too  numerous  to 
mention.  My  colleagues  were  Melville  W.  Fuller,  now  Chief  Jus- 
tice of  the  United  States  Supreme  Court,  John  Wentworth  and 
John  H.  Muhlke.  Hon.  William  H.  Hacker  was  elected  president 
of  the  convention,  and  Hon.  William  M.  Springer,  commonly  known 


112 


CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 


at  that  time  as  "Bill  Springer,"  was  elected  clerk.  He  has  for 
many  years  been  engaged  in  doing  missionary  work  at  Washington 
as  a  member  of  the  House  of  Representatives.  The  convention 
was  lively  and  at  times  boisterous.  We  might  as  well  have  under- 
taken to  form  a  constitution  on  the  battlefield. 

There  were  many  members  who  had  become  infused  with  the 
doctrines  of  State  sovereignty  and  the  omnipotence  of  the  conven- 
tion— and  it  went  to  excesses.  It  claimed  to  have  all  the  powers 
of  the  people  if  they  were  assembled  together  and  were  bodily 
present,  and  were  acting  in  their  original  and  primary  capacity.  It 
was  at  a  time  when  a  great  deal  was  said  in  the  newspapers  about 
ordinances,  and  that  was  a  term  which  was  well  known  throughout 
the  South.  Ordinances  were  made  use  of  then  to  accomplish 
secession,  and  they  were  odious. 

Our  people  did  not  like  the  nomenclature  and  did  not  like  their 
purpose,  and  denounced  them  without  stint  or  measure.  Notwith- 
standing this,  ordinances  of  one  kind  and  another  were  introduced 
and  passed,  and  the  people  began  to  find  fault,  and  the  soldier  ele- 
ment greatly  excited.  It  was  rumored  that  some  of  the  leading 
men  in  the  convention  were  "Knights  of  the  Golden  Circle,"  and 
were  hostile  to  the  government. 

This  feeling  of  hostility  reached  its  climax  when,  on  the  arrival 
of  news  of  the  capture  of  Fort  Henry,  we  introduced  some  high 
sounding,  yet  patriotic  resolutions,  rejoicing  over  the  great  victory 
which  had  been  achieved  by  our  soldiers  over  "  the  rebels  and 
traitors,"  and  which,  instead  of  being  adopted  by  a  rising  vote,  as  we 
demanded,  were  referred  to  a  select  committee,  and  after  some  delay 
were  reported  back  shorn  of  all  their  beauty  and  symmetry — cold  and 
lifeless  as  if  they  had  been  subjected  to  a  refrigerating  process.  This 
aroused  the  people  greatly,  and  responses  soon  came  from  the  army 
and  Illinois  soldiers  in  the  field,  and  the  usefulness  of  the  convention 
was  at  an  end.  It  was  foredoomed,  'and  several  times  the  minority 
threatened  to  retire  in  a  body. 

It  was  at  this  juncture  that  Mr.  Manning,  of  Peoria,  on  the  fall 
of  Fort  Donaldson,  in  a  paroxysm  of  patriotic  zeal,  introduced,  and 
the  convention  passed,  an  ordinance  commencing:  "Be  it  ordained 
by  the  People  of  the  State  of  Illinois,  represented  and  assembled  in 
constitutional  convention,  That  the  sum  of  five  hundred  thousand 
dollars,  or  so  much  thereof  as  may  be  necessary,  be,  and  the  same  is 
hereby  appropriated  out  of  the  treasury  of  the  State  of  Illinois,  for 


CONSTITUTIONAL  CONVENTION  OF  1862.  113 

the  exclusive  purpose  of  relieving  the  wants  and  sufferings  of  the 
brave  sons  of  Illinois  who  have  been  or  may  be  wounded  in  the 
battles  fought  by  them  and  their  brothers  in  the  defense  of  the 
Union  and  Constitution."  Sections  two  and  three  authorized  the 
issue  by  the  governor,  auditor  and  treasurer  of  Illinois,  of  State 
bonds  for  that  amount,  and  provided  for  the  disbursement  of  the 
money  by  those  officers,  jointly,  with  a  committee  to  be  appointed 
by  the  convention. 

There  never  was-  a  more  praiseworthy  object;  but  as  the  ordi- 
nance was  introduced,  as  all  who  were  members  of  that  convention 
know,  as  a  bluff,  and  to  silence  all  hostile  criticisms  of  the  action  of 
those  who  were  in  the  majority,  it  is  needless  to  say  that  it  never 
amounted  to  anything;  but  it  does  illustrate  most  clearly  the  pre- 
tensions of  those  who  held  to  the  doctrine  that  the  people  of  the 
State  of  Illinois  were  not  only  "represented"  there  on  that  day,  but 
were  actually  "assembled  in  constitutional  convention,"  and  could 
legislate  to  any  extent  and  on  any  subject,  precisely  as  if  every 
individual  voter  were  bodily  present  and  then  and  there  voting. 

When  it  was  perceived  that  the  work  of  the  convention  was 
being  so  severely  criticised,  a  reaction  took  place  among  the  "high 
rollers,"  and  a  partial  restoration  of  good  feeling  took  place,  and  a 
great  effort  was  then  made  to  frame  a  Constitution  that  would  be 
acceptable  to  the  people,  and  if  it  had  not  been  for  the  hostile 
feelings  which  had  been  so  injudiciously  engendered,  the  Constitu- 
tion would  have  been  adopted.  As  finally  prepared,  it  was  really  a 
good  Constitution,  and  a  great  improvement  over  .the  then  existing 
Constitution,  but  nothing  would  suffice.  It  was,  on  a  popular  vote, 
overwhelmingly  defeated,  and  matters  left  in  their  condition  until 
peace  was  restored,  and  all  national  issues  had  been  settled  by  the 
dread  arbitrament  of  war. 

Many  of  the  discussions  which  took  place  were  characterized 
by  great  ability,  but  the  two  speeches  which  we  recollect  with  great 
distinctness,  and  which  were  probably  the  two  ablest  speeches, 
all  things  considered,  made  upon  the  floor  of  the  House,  were  those 
by  Melville  W.  Fuller,  now  chief  justice,  and  that  of  John  Went- 
worth,  on  the  death  of  Stephen  A.  Douglas.  Judge  Douglas  had 
died  some  months  before,  and  this  was  the  first  deliberative  body 
which  had  assembled  in  the  State  after  his  death;  and  very  early  in 
the  session  Mr.  Fuller  had  introduced  a  resolution  calling  for  the 
appointment  of  a  special  committee  to  report  suitable  resolutions  in 


114  CONSTITUTIONAL  HISTORY    OF    ILLINOIS. 

regard  to  the  same,  and  was,  of  course,  made  chairman  of  the  com- 
mittee; on  the  report  coming  in  at  a  fixed  day,  some  weeks  after- 
ward, the  convention  was  given  up  to  a  consideration  of  the  same 
and  to  speech-making.  Mr.  Fuller  had  made  the  most  thorough 
preparation  for  the  occasion,  and  his  effort  was  not  disappointing. 
It  was  a  master-piece,  and  gave  him  almost  a  national  reputation. 
Mr.  Wentworth's  speech  was  of  a  somewhat  different  character 
from  that  of  Fuller's,  and  abounded  in  reminiscences  of  Douglas 
and  his  contests  for  recognition  in  Illinois,  his  great  contest  for  the 
House  of  Representatives  with  John  T.  Stuart,  his  opposition  to 
Buchanan,  and  closed  with  a  magnificent  tribute  to  his  patriotism,  his 
honesty  and  the  position  that  he  would  assume  in  the  future  annals 
of  this  State.  Mr.  Wentworth  was  on  this  occasion  at  his  best  and 
carried  all  before  him. 

No  finer  tributes  were  ever  paid  to  the  memory  of  Douglas 
than  those  two  speeches,  and  we  have  often  wondered  that  they 
were  not  resurrected  and  published. 

And  here  we  would  say,  as  many  maybe  interested  in  knowing, 
that  Mr.  Fuller,  while  gomg  with  his  party  on  party  questions,  was 
not  a  "  high  roller"  in  the  convention,  but  was  most  eminently  fair 
and  considerate  in  everything.  He  was  always  a  gentleman  and  was 
distinguished  as  a  scholar.  The  abilities  that  he  then  displayed 
were  a  sure  promise  of  what  he  afterward  became. 

THE  NAMES  OF  THE    DELEGATES    TO    THE    CONSTITUTIONAL    CONVENTION 
OF  JANUARY  7,  1862. 

Alexander.  Pulaski  and  Union  Counties — William  A.  Hacker. 

Pope,  Hardin  and  Massac  Counties — George  W.  Waters. 

Williamson  and  Johnson — William  J.  Allen. 

Gal  latin  and  Saline  Counties — Milton  Bartley. 

Franklin  and  Jackson  Counties — Andrew  D.  Duff. 

Randolph  County — Daniel   Reiley.  I 

Washington  and  Perry  Counties — George  W.  Wall. 

Jefferson,  Marion  and  Hamilton  Counties— H.  K.  S.  Omelreny,  T.  B.  Tanner. 

Wabash  and  White  Counties — Thomas  W.  Stone. 

Wayne  and  Edwards  Counties — R.  P.  Hanna. 

Monroe  County — Thomas  W.  Morgan. 

St.  Clair  County — Augustus  C.  French,  James  B.  Underwood. 

Clinton  and  Bond  Counties — Samuel  Stevenson. 

Madison  County — Solomon  Koepfli. 

Fayette  and  Em'ngham  Counties — Isaac  L.  Leith. 

Richland,  Clay  and  Jasper  Counties — James  H.  Parker. 

Lawrence  and  Crawford  Counties — Harmon  Alexander. 

Cumberland  and  Alexander  Counties— Anthony  Thornton. 


CONSTITUTIONAL  CONVENTION  OF  1862.  115 

Montgomery  and  Christian  Counties — Horatio  M.  Vandeveer. 

Macoupin  County— Lewis  Solomon. 

Greene  County — John  M.  Woodson. 

Edgar  County — James  A.  Eades. 

Coles,  Moultrie  and  Douglas  Counties — Orlando  B.  Ficklin. 

Sungamon  County — Benjamin  S.  Edwards,  James  D.  Smith. 

Morgan  and  Scott  Counties — Joseph  Morton,  Albert  G.  Burr. 

Pike  and  Brown  Counties — Alexander  Starne,  Archibald  Glenn. 

Adams  County — James  W.  Singleton,  Austin  Brooks. 

Schuyler  County — John  P.  Richmond. 

Hancock  County — Milton  M.  Morrill. 

McDonough  County — Joseph  C.  Thompson. 

Fulton  County — Lewis  W.  Ross,  John  G.  Graham. 

Cass  and  Minard  Counties — Thompson  W.  McNeeley. 

Logan  and  Mason  Counties — E.  L.  Austin. 

Macon.  Piatt,  DeVVitt  and  Champaign  Counties — T.  R.  Webber. 

Vermillion  and  Ford  Counties — Elias  S.  Terry. 

McLean  County — William  W.  Orme. 

Tazewell  County — Robert  B.  M.  Wilson. 

Henderson  and  Warren  Counties — Jonathan-Simpson. 

Peoria  County — Julius  Manning. 

Stark  County — Norman  H.  Purple. 

Marshall,  Woodford  and  Putnam  Counties — John  Burn?. 

La  Salle,  Livingston  and  Grundy  Counties — Alexander  Campbell,  Perry  A. 
Armstrong. 

Kendall  County — Thomas  Finnie. 

Will,  DuPage,  Kankakee  and  Iroquois  Counties — Francis  Goodspeed,  J.  W. 
Paddock,  Henry  C.  Childs. 

Kane  and  De  Kalb  Counties — Stephen  B.  Stinson. 

Bureau  County — Robert  T.  Templeton. 

Mercer,  Henry  and  Rock  Island  Counties — George  W.  Pleasants. 

Lee  and  Whiteside  Counties — John  Dement. 

Ogle  County — Charles  Newcomer. 

Jo  Daviess  and  Carroll  Counties — Wellington  Weigley,  Henry  Smith. 

Stephenson  County — Williard  P.  Naramore. 

Winnebago  County — Porter  Sheldon. 

Boone  and  McHenry  Counties — William  M.  Jackson,  Luther  W.  Lawrence. 

Lake  County  — Elisha  P.  Terry. 

Cook  County — John  Wentworth,  Melville  W.  Fuller,  Elliott  Anthony,  John 
H.  Muhlke. 

Madison  County — Samuel  A.  Buckmaster. 

Jersey  County — William  A.  Allen. 

Kane  County — Adoniram  J.  Joslyn. 

Knox  County — W.  Sheldon  Gale. 


CHAPTER  XXIII. 
Constitutional  Convention  of  1869-70. 

SEVEN  years  after  the  constitutional  convention  of  1862  had 
adjourned  another  was  called  together  and  entered  upon  the 
task  of  revising  the  Constitution  which  had  been  in  existence  since 
1848.  The  war  was  then  over  and  when  the  convention  assembled, 
the  delegates  were  in  a  chastened  mood.  The  grave  lessons  which 
had  been  taught  us  during  that  long  period  which  preceded  and 
accompanied  the  war  had  not  been  forgotten,  but  all  entered  upon 
their  duties  with  the  ripe  experience  of  men  who  had  given  to  the 
subject  of  government  the  most  profound  study.  Many  had  taken 
part  in  the  war  and  had  at  various  times  been  connected  with  the 
government,  had  tilled  high  and  honorable  positions  in  the  National 
and  State  government,  had  had  long  experience  and  great  obser- 
vation in  local  affairs,  and  knew  the  wants  and  requirements  of 
the  State  thoroughly.  "We  met  in  the  Hall  of  the  House  of  Rep- 
resentatives of  the  old  State  House  on  Monday,  the  13th  of  Decem- 
ber, 1869,  at  2  o'clock  in  the  afternoon,  and  the  final  adjournment 
took  place  on  the  13th  of  May,  1870. 

The  delegates  were  nearly  equally  divided  in  politics  and  an 
occurrence  happened  in  regard  to  the  selection  of  a  permanent  chair- 
man of  the  convention,  very  similar  to  that  which  took  place  on 
the  assembling  of  the  constitutional  convention  of  1847.  The  dele- 
gates from  Cook  county  had  been  elected  as  non- partisans  and  on 
a  citizens'  ticket.  It  was  composed  of  Joseph  Medill,  editor  of  the 
Chicago  Tribune,  William  F.  Coolbaugh,  S.  S.  Hayes,  Daniel  Cam- 
eron, Charles  Hitchcock  and  myself.  We  held  the  balance  of 
power  and  we  concluded  to  assist  in  the  organization  of  the  House 
on  as  nearly  a  non-partisan  basis  as  possible;  and  as  the  State  was 
overwhelmingly  republican,  we  thought  of  course  that  the  per- 
manent chairmanship  should  be  given  to  a  republican,  and  as  Mr. 
Hitchcock  was  a  republican  lawyer  of  great  learning  and  distinc- 
tion we  selected  him.  The  minor  offices  were  all  about  equally 
divided.  A  slight  skirmish  occurred  at  the  opening  of  the  conven- 
tion between  the  opposing  forces,  as  to  who  should  be  made 

(116) 


CONSTITUTIONAL  CONVENTION  OF  1869-70.  117 

temporary  chairman,  which  imparted  zest  to  the  occasion.  The 
friends  of  William  Gary,  of  Jo  Daviess,  and  the  friends  of 
John  Dement,  of  Lee,  were  both  proposed  by  parties  at  one 
and  the  same  time,  and  they  were  both  declared  elected,  both 
ascended  the  platform  at  the  same  moment  and  each  "assumed 
the  chair;"  and  on  motions  being  made  each  would  alternately 
put  the  motions  and  sometimes  one  would  declare  the  same 
carried,  while  the  other  would  declare  them  lost.  The  scene  was 
so  ludicrous  and  laughable  that  we  were  kept  in  an  uproar  nearly 
all  the  afternoon.  On  the  adjournment  of  the  convention  for  the 
day  a  consultation  was  had,  and  as  it  was  shown  that  Mr.  Dement 
had  the  greatest  following,  was  an  old  pioneer,  and  had  been  in  the 
constitutional  convention  of  1847  and  1862,  it  was  decided  that  it 
would  be  no  more  than  right  to  confer  the  honor  of  temporary  pre- 
siding officer  upon  him,  and  expunge  from  the  record  all  that  had 
taken  place  under  the  auspices  of  the  double-headed  convention. 
This  was  agreed  to,  and  the  record  of  the  convention  as  made  up, 
shows  nothing  of  the  dual  order  of  proceedings,  but  shows  that 
Mr.  Dement  was  elected  temporary  presiding  officer  by  a  vote  of 
45  to  38. 

Col.  Dement  was  a  most  worthy  man,  had  been  long  connected 
with  the  State,  and  had  been  a  member — as  we  have  said — of  the 
constitutional  conventions  of  1847  and  1862,  and  on  taking  the 
chair  referred  to  these  things  in  a  most  happy  manner,  as  follows: 

"  Gentlemen  of  the  Convention: — Usual  as  I  know  it  is,  for  per- 
sons indicated  as  presiding  officer  for  the  mere  temporary  purpose 
of  organizing  a  deliberative  body  to  make  a  response  in  return  to 
their  friends,  I  certainly,  under  the  peculiar  circumstances  by  which 
I  occupy  this  position,  would  not  act  in  accordance  with  my  feel- 
ings if  I  did  not  adopt  some  form  of  expressing  my  thanks  to  you. 
While  there  has  been  something  that  at  first  appeared  as  though 
unpleasant  results  might  occur,  my  obligations  and  gratitude  are 
eminently  increased  by  what  I  firmly  believe  to  be  a  harmonious 
conclusion  of  this  little  episode,  as  I  shall  please  to  call  it.  I  am 
proud  of  it  on  account  of  the  kindness  and  good  feeling  that  I 
believe  exists  between  the  gentleman  who  was  proposed  for  the 
same  position  a"s  myself,  and  when  I  cast  my  vote  for  him,  there 
was  something  more  intended  than  a  mere  exchange  of  courtesies. 

I  respect  the  gentleman. 

I  respect  those  gentleman  that  cast  their  votes  in  his  favor. 


118  CONSTITUTIONAL  HISTORY   OF   ILLINOIS. 

The  compliment  that  I  have  received  at  your  hands  is  greatly 
enhanced  by  the  circumstances  that  have  been  mentioned  already; 
nevertheless,  without  adopting  these  compliments  and  sentiments,  I 
must  say  that  I  regard  this  compliment  as  high  as  it  is  possible  for 
me  to  regard  any,  for  the  reason  that  there  are  so  many  here  who 
are  my  seniors  and  superiors. 

But  1  have  another  reason  to  feel  grateful  to  yon. 

There  are  gentlemen  here  with  whom  I  have  been  associated  in 
the  conventions  of  1847  and  1862,  and  others  here  who  are  my 
friends  of  more  than  forty  years  standing. 

These  circumstances  renew  to  my  mind  scenes  of  my  life  that 
are  dear  to  me.  They  carry  me  back  to  that  period  when  I  explored 
the  then  wilderness  territory  of  Illinois,  and  you  will  allow  me, 
with  yourselves,  to  express  my  gratitute,  admiration  and  wonder 
at  the  great  change  which  we  experience  in  comparing  these  two 
periods — that,  when  our  State  contained  probably  not  over  twenty 
thousand  white  people,  and  the  present,  when  we  estimate  its  popu- 
lation by  millions.  We  all  recognize  the  fact  that  we  occupy  our 
present  positions  at  the  call  of  the  great  people  in  the  exercise  of 
the  most  conservative  and  liberal  spirit,  and  also  the  obligations  that 
these  circumstances  impose  upon  us  of  framing  a  constitution  and 
a  fundamental  law,  under  the  provisions  of  which  the  affairs  of 
our  State  shall  be  administered  for  the  prosperity  and  happiness  of 
the  millions  of  our  general  population  as  well  as  for  their  welfare 
in  the  future." 

No  address  was  ever  conceived  in  better  taste.  It  was  well 
received,  and  coming  from  one  so  well  known  and  respected,  and 
from  one  who  was  so  nearly  connected  with  the  pioneer  period  of  the 
State,  we  all  looked  upon  it  as  a  happy  augury  and  a  most  graceful 
ending  to  what  at  first  bid  fair  to  be  an  unpleasant  beginning  to 
our  labors. 

Hon.  William  Gary,  who  was  brought  into  prominence  by  the 
occurrence  above  referred  to,  was  a  lawyer  of  prominence,  who  lived 
at  Galena  and  who  was  elected  a  delegate  from  Jo  Daviess  county. 
He  afterward  became  United  States  District  Attorney  for  Utah 
Territory,  then  removed  to  Deadwood  in  Western  Dakota,  where 
he  has  resided  ever  since. 

The  men  who  composed  that  convention  were  many  of  them 
distinguished  in  their  chosen  walks  long  before  their  fellow  citizens 
selected  them  to  assist  in  framing  a  fundamental  law,  under  which 


CONSTITUTIONAL  CONVENTION  OF  1869-70.  119 

our  civil  institutions  have  been  ennobled,  and  our  beloved  com- 
monwealth has  attained  the  front  rank  in  the  galaxy  of  States. 
There,  on  that  day,  the  13th  of  December,  1869,  were  assembled 
men,  venerable  in  years,  who  had  adorned  the  Senate  of  the  United 
States,  men  who  had  been  members  of  Congress,  distinguished 
jurists  who  had  presided  over  the  highest  tribunal  within  our 
borders,  men  renowned  in  the  marts  of  commerce,  great  bankers 
and  merchants,  the  editors  of  great  newspapers,  leaders  of  public 
opinion,  men  who  were  authority  in  finance,  representatives  of  the 
hardy  yeomanry  and  tillers  of  the  soil,  who  understood  well  the 
interests  of  the  rural  population,  men  who  had  traveled  far  and 
learned  much,  men  who  were  masters  of  experimental  science,  phy- 
sicians of  renown,  men  of  great  classical  attainments,  men  of  native 
eloquence,  ornaments  of  the  Senate,  the  pulpit  and  the  bar,  and  we 
will  add,  no  one  of  whom  ever  presumed  or  had  the  temerity  to 
believe  that  he  was  legislating  for  all  time,  or  that  when  he  died  all 
wisdom  in  framing  the  laws  and  the  Constitution  of  the  greatest  of 
our  commonwealths,  would  die  with  him. 

Hon.  John  M.  Palmer  was  the  Republican  governor  of  the  State 
at  that  time.  His  politics  were  sound,  his  instincts  good,  and  he  was 
one  of  the  most  intelligent  public  officers  that  ever  occupied  the 
executive  chair. 

He  was  frequently  called  upon  by  members  of  the  convention 
for  his  advice,  and  so  highly  was  he  regarded  that  we  caused  to 
be  published  for  our  use  all  of  his  veto  messages,  which  were 
quite  numerous  and  very  able,  among  which  was  his  veto  message 
of  the  famous  Lake  Front  Bill,  which  was  a  master-piece  of  logic 
and  one  of  the  most  important  documents  of  the  kind  which  ever 
emanated  from  the  hand  and  brain  of  a  lawyer  in  this  State.  He 
assisted  by  his  advice  in  the  framing  of  the  executive  article,  and 
we  will  not  withhold  our  tribute  of  respect  and  meed  of  praise, 
although  strange  vagaries  may  have  since  passed  over  his  mental 
vision,  and  the  lurid  flames  of  the  Chicago  fire  warped  his  judg- 
ment as  to  what  constitutes  the  true  limitations  of  the  police  power 
of  the  United  States  Government  and  that  of  the  State  in  attempting 
to  deal  with  unforeseen  calamities  and  untold  woes  in  the  midst  of  a 
conflagration  which  had  never  been  equaled  since  the  destruction 
of  Jerusalem  in  the  days  of  Titus. 

He  took  a  prominent  part  in  putting  down  the  war  of  the  Rebell- 
ion— was  among  the  first  to  liberate  the  slaves  while  stationed  in 


120  CONSTITUTIONAL  HISTORY    OF    ILLINOIS. 

Kentucky,  and  was  a  leader  of  public  opinion.  We  trust  that  ho 
will  some  day  tell  us  why  he  became  a  democrat.  He  yet  lingers 
on  the  stage  of  action  as  powerful  as  Ajax,  as  invulnerable  as 
Achilles,  in  the  full  enjoyment  of  unimpaired  energies,  gloriously 
awaiting  his  apotheosis. 

And  right  here  we  fall  into  reverie.  The  metamorphosis  which 
political  parties  and  many  of  our  public  men  have  undergone  in 
relation  to  many  public  questions  since  the  close  of  the  war.  is 
astonishing  to  us.  It  is  not  unlike  that  which  took  place  in  the  times 
of  George  the  First,  as  described  by  Macaulay  in  his  review  of  the 
life  and  times  of  "  The  Earl  of  Chatham." 

"Dante  tells  us  that  he  saw  in  Malebolge,  a  strange  encounter 
between  a  human  form  and  a  serpent.  The  enemies,  after  cruel 
wounds  inflicted,  stood  for  a  time  glaring  on  each  other.  A  great 
cloud  surrounded  them,  and  then  a  wonderful  metamorphosis  began. 
Each  creature  was  transfigured  into  the  likeness  of  its  antagonists. 
The  serpent's  tail  divided  itself  into  two  legs;  the  man's  legs  inter- 
twined themselves  into  a  tail.  The  body  of  the  serpent  put  forth 
arms;  the  arms  of  the  man  shrank  into  his  body.  At  length  the 
serpent  stood  up  a  man  and  spoke;  the  man  sank  down  a  serpent 
and  glided,  hissing,  away.  Something  like  this  was  the  transforma- 
tion which,  during  the  reign  of  George  the  First,  befell  the  two 
English  parties.  Each  gradually  took  the  shape  and  color  of  its 
foe,  till  at  length  the  tory  rose  up  erect,  the  zealot  of  freedom,  and 
the  whig  crawled  and  licked  the  dust  at  the  feet  of  power." 

The  lesson  which  this  teaches  is  one  of  sad  and  solemn  import, 
like  the  fall  of  Adam,  and  is  attended  with  all  of  its  consequences. 

We  entered  upon  the  discharge  of  our  duties  with  alacrity,  and 
held  an  inquest  upon  all  existing  institutions,  systems  and  depart- 
ments of  the  government,  and  we  let  nothing  escape  us.  We  voted 
for  every  resolution  of  investigation  in  regard  to  all  created  things, 
from  the  days  of  the  "  mound  builders  "  down  to  the  construction 
of  the  Illinois  and  Michigan  Canal.  We  pondered  over  all  forms  of 
government  and  all  methods  of  exercising  the  elective  franchise, 
and  ended  by  adopting  minority  representation,  which  has,  it  is 
claimed,  proved  to  be  a  great  check  on  the  tyranny  of  majorities, 
and  like  carrying  a  lighted  lamp  into  regions  heretofore  black  with 
darkness  and  surrounded  with  gloom.  Hon.  Joseph  Medill,  the 
veteran  editor  of  the  Chicago  Tribune,  was  the  great  apostle  and 
champion  of  this  system  of  voting,  and  is  to-day  its  warm  defender. 


CONSTITUTIONAL  CONVENTION  OF  1869-70.         121 

It  seems  to  have  worked  very  well  and  has  been  the  means  of  intro- 
ducing those  differing  in  politics  to  each  other,  and  toning  down 
in  many  instances  the  views  of  those  who  could  never  before  see 
any  good  coining  forth  from  Nazareth. 

Minority  representation  was,  at  the  time  of  its  introduction, 
a  novelty  in  political  science,  and  was  regarded  as  an  experiment, 
and  of  it,  it  may  be  said  :  "  There  is  no  more  hazardous  enterprise 
than  that  of  bearing  the  torch  of  truth  into  those  dark  and  infected 
recesses  in  which  no  light  has  ever  shone." 

It  was  the  choice  and  pleasure  of  Mr.  Medill  to  penetrate  the 
noisome  vapors,  and  to  brave  the  terrible  explosion.  He  took 
his  stand  upon  the  popular  parts  of  his  political  creed  with  firmness 
and  decision,  and  defended  them  with,  an  ability  rarely  equaled. 
He  was  like  Milton  when  he  stood  up  for  divorce  and  regicide. 
He  attacked  the  prevailing  system  without  scruple,  and  bore  down 
on  it  without  let  or  hindrance.  "  His  radiant  and  beneficent  career 
resembled  the  god  of  light  and  fertility."  He  pushed  through 
minority  representation,  and  there  it  remains  a  monument  to  his 
foresight  and  an  educator  of  the  highest  order.  It  astonished  all 
the  Bourbons  and  old-fashioned  Andrew  Jackson  democrats,  and 
moss-backed  politicians  of  both  parties,  and  they  have  never  ceased 
to  wonder  at  it  till  the  present  hour.  We  do  not  think  that  it  has 
effected  all  that  has  been  claimed  for  it,  and  the  system  is  still  open 
for  debate. 

What  the  delegates  did  on  that  occasion  was  by  no  means  a 
finality,  and  it  may  be  that  in  the  rapid  changes  which  have  taken 
place,  and  are  now  taking  place,  much  of  their  work  may  have  been 
found  useless  or  impracticable,  and  should  be  superseded  by  other 
systems  arid  other  provisions  that  we  thought  not  of,  but  we  doubt 
it.  Men  who  have  neither  looked  into  the  history  of  the  past,  nor 
yet  troubled  themselves  to  learn  what  happens  year  by  year,  will 
often  be  surprised  to  find  what  changes  take  place  in  a  few  months 
or  years,  and  it  is  asserted  that  neither  men  nor  measures  can 
remain  for  an  hour  unchanged.  This  statement  is  partly  true  and 
partly  false  in  its  application  to  fixed  governments,  and  changes  in 
systems  are  not  as  rapid  as  they  are  sometimes  thought  to  be.  The 
members  of  that  convention  did  the  best  that  they  knew  how,  and 
many  now  sleep  from  their  labors  and  are  at  rest.  The  great 
majority  of  them  have  long  since  passed  over  into  the  better  laud. 


122  CONSTITUTIONAL  HISTORY    OF   ILLINOIS* 

A  few  of  us  still  remain,  but 

"When  I  remember  all 

The  friends  so  linked  together, 
I've  seen  around  me  fall, 

Like  leaves  in  wintry  weather, 
I  feel  like  one  who  treads  alone, 
Some  banquet  hall  deserted, 
Whose  lights  are  fled, 
Whose  garlands  dead, 
And  all  but  he  departed." 

UST   OF    DELEGATES    TO    THE    CONSTITUTIONAL    CONVENTION   OF 
1869  AND  1870. 

First  District. — Alexander,  Pulaski  and  Union  Counties — William  G.  Allen. 

Second  District. — Massac,  Pope  and  Johnson  Counties — George  W.   Brown. 

Third  District. — Hardin,  Saline  and  G-allatin  Counties — W.  G.  Bowman. 

Fourth  District. — Lawrence  and  Wabash  Counties — James  M.  Sharp. 

Fifth  District. — Franklin  and  Jefferson  Counties — William  B.  Anderson. 

Sixth  District. — Jackson  and  Williamson  Counties — James  M.  Washburn. 

Seventh  District. — Clinton  and  Washington  Counties— Harvey  P.  Buxton. 

Eighth  District. — Monroe,  Randolph  and  Perry  Counties — J.  H.  Wilson, 
George  W.  Wall. 

Ninth  District. — Marion  County — Silas  L.  Bryan. 

Tenth  District. — Wayne  and  Hamilton  Counties — Robert  P.  Hanna. 

Eleventh  District. — Jasper  and  Crawford  Counties — James  C.  Allen. 

Twelfth  District. — Clay  and  Richland  Counties — James  P.  Robinson. 

Thirteenth  District. — Fayette  and  Effingham  Counties — Beverly  W.  Henry. 

Fourteenth  District. — Edwards  and  White  Counties — Charles  E.  McDowell. 

Fifteenth  District. —$(,.  Cia.ii  County— William  H.  Snyder,  William  H. 
Underwood. 

Sixteenth  District. — Madison  and  Bond  Counties — Charles  F.  Springer,  Henry 
W.  Billings. 

Seventeenth  District. — Clark  and  Cumberland  Counties — John  Schofield. 

Eighteenth  District. — Shelby  County — George  R.  Wendling. 

Nineteenth  District. — Christian  and  Montgomery  Counties — Edward  Y.  Rice. 

Twentieth  District. — Sangamon  and  Logan  Counties — Milton  Hay,  Samuel  C. 
Parks. 

Twenty-first  District. — Macoupin  County — John  W.  Hankins. 

Twenty-second  District. — Jersey  and  Calhoun  Counties — Robert  A.  King. 

Twenty-third  District. — Green  County — James  W.  English. 

Twenty-fourth  District. — Pike  and  Scott  Counties — William  R.  Archer, 
John  Abbott. 

Twenty-fifth  District. — Cass  and  Brewer  Counties — William  S.  Vandeventer. 

Twenty-sixth  District. — Menard  and  Mason  Counties — O.  H.  Wright. 

Twenty-seventh  District. — Morgan  County — Henry  J.  Atkins. 

Twenty-eighth  District. — Adams  County — Orville  W.  Brown  Onias  C. 
Skinner. 

Thirtieth  District.— Schuyler  County — Jesse  C.  Fox. 

Thirty-first  District. — Hancock  County — David  Ellis. 


CONSTITUTIONAL  CONVENTION  OF  1869-70.         123 

Thirty-second  District. — Henderson  and  Mercer  Counties — James  S.  Pooge. 

Thirty-third  District. — Warren  County — A.  G.  Kirkpatrick. 

Thirty-fourth  District. — Knox  County — Alfred  M.  Craig. 

Thirty-fifth  District. — Fulton  County — Lewis  W.  Ross,  Samuel  P.  Cummings. 

Thirty-sixth  District. — Peoria  and  Stark  Counties — Henry  W.  Wells,  Miles  S. 
Fuller. 

Thirty-seventh  District. — Tazewell  County — Jonathan  Merriam. 

Thirty-eighth  District, — McLean  and  DeWitt  Counties — Reuben  M.  Benja- 
min, Clifton  H.  Moore. 

Thirty-ninth  District. — Coles,  Douglas,  Edgar  and  Vermillion  Counties — 
John  L.  Trucker,  Henry  P.  H.  Brownwell,  Richard  B.  Sutherland. 

Fortieth  District. — Champaign,  Macon,  Moultrie  and  Piatt  Counties — Charles 
Emraerson,  Abel  Howard. 

Forty-first  D  strict. — Kankakee  County — Original  delegate — Wm.  H.  Patter- 
son, deceased;  to  Gil  vacancy,  John  P.  Gamble. 

Forty-second  District. — Iroquois  and  Ford  Counties — Addison  Goodell. 

Forty-third  District. — Will  and  Grundy  Counties — Wm.  C.  Goodhue,  W.  P. 
Pierce. 

Forty-fourth  District. — La  Salle  and  Livingston  Counties — George  S.  Eld- 
ridge,  Joseph  Hart,  Nathaniel  J.  Pillsbury. 

Forty-fifth  District. — Bureau,  Putnam,  Woodford  and  Marshall  Counties — S. 
D.  Whiting,  Jas.  G.  Boyne,  Peleg  S.  Perley. 

Forty-sixth  District. — Henry  County — George  E.  Wait. 

Forty-seventh  District — Rock  Island  County — Calvin  Truesdale. 

Forty-eighth  District. — Whiteside  County — James  McCoy. 

Forty-ninth  District. — Lee  County — John  Dement. 

Fiftieth  District. — Ogle  County — Joseph  Parker. 

Fifty-first  District. — De  Kalb,  Boone  Counties — Westel  W.  Sedgwick,  Jesse 
L.  Hildrup. 

Fifty-second  District. — Kane  and  Kendall  Counties — Charles  Wheaton,  Henry 
Herrell. 

Fifty-third  District. — Lake  County — Elijah  M.  Haines. 

Fifty-fourth  District. — McHenry  County — Lawrence  S.  Church. 

Fifty-fifth  District. — Winnebago  County — Robert  J.  Cross. 

Fifty-sixth  District. — Stephenson  County — Thomas  J.  Turner. 

Fifty-seventh  District. — Jo  Daviess  and  Carroll  Counties — William  Gary, 
David  C.  Wagner. 

Fifty-eighth  District. — Du  Page  County — Hiram  H.  Cody. 

Fifty-ninth  District. — Cook  County — Joseph  Medill,  John  C.  Haines,  Snowden 
S.  Hayes. 

Sixtieth  District. — Portion  of  Cook  County — William  C.  Coolbaugh,  Charles 
Hitchcock. 

Sixty-first  District. — Portion  of  Cook  County — Elliott  Anthony,  Daniel 
Cameron. 


CHAPTEK  XXIY. 
Is  a  Constitutional  Convention  Needed. 

BUT  death  never  interrupts  the  continuity  in  the  life  of  govern- 
ments or  nations.  And  this  brings  us  at  length  to  the  consider- 
ation of  the  question  which  we  have  been  requested  to  discuss  by 
the  Bar  Association  of  the  State,  to  wit:  "  The  needs  of  a  Constitutional 
Convention."  The  form  in  which  the  question  is  presented  would 
seem  to  imply  that  the  matter  had  been  already  settled,  and  that 
all  we  had  to  do  was  to  enumerate  those  needs  or  various  topics  or 
subjects  which  such  a  convention  would  be  called  upon  to  deal 
with,  and  then  our  task  would  be  done.  But  we  are  assured  that 
in  propounding  the  question  in  this  form,  it  was  not  intended  that 
those  who  should  be  called  upon  to  discuss  the  same,  should  assume 
the  affirmative  side  instead  of  the  negative,  but  that  we  should  be 
left  free  to  discuss  the  same  as  we  see  tit,  and  it  is  with  this  under- 
standing that  we  now  enter  the  lists  as  a  "  free  lance." 

The  visionaries  of  this  world  we  are  conscious  we  can  not 
satisfy,  for  we  have  no  time  and  no  inclination  to  meet  their  vague 
and  declamatory  asseverations.  What  we  are  concerned  with  is  the 
science  of  government,  and,  as  a  practicable  being,  what  form  of 
government  is  best  adapted  to  promote  the  happiness  and  secure 
the  rights  and  interests  of  the  people  upon  whom  it  is  to  act. 

The  American  forms  of  government,  both  National  and  State, 
are  in  many  respects  the  most  intricate  and  complex  of  all  forms  of 
government  since  they  deal  with  all  the  various  concerns  and  rela- 
tions of  man,  and  must  perpetually  reason  from  the  imperfect  expe- 
rience of  the  past  for  the  boundless  contingencies  of  the  future. 
The  most  that  we  can  hope  to  do  under  such  circumstances  is  to 
make  nearer  and  nearer  approximations  to  truth,  without  our  ever 
being  certain  of  having  arrived  at  it  in  a  positive  form.  Govern- 
ment, however  it  may  be  detined,  is  nothing  more  nor  less  than 
the  science  of  adaptations,  variable  in  its  elements,  dependent  upon 
circumstances  and  incapable  of  a  rigid  mathematical  demonstration. 

The  men  who  insist  that  government  is  a  matter  of  great  sim- 
plicity, that  its  principles  are  so  clear  that  there  ought  to  be  jno 
mistake,  and  that  any  persons  of  ordinary  skill  ought  to  be  able  to 

(124) 


iS  A  CONSTITUTIONAL  CONVENTION  NEEDED.  125 

frame  a  constitution  for  any  State  that  will  last  at  least  a  hundred 
years,  are  so  devoid  of  all  sense  or  reason  that  they  are  beyond  our 
influence  and  beyond  our  hopes  of  salvation  this  side  of  the  resur- 
rection morn.  If  there  is  any  one  thing  that  has  been  demonstrated 
it  is  that  in  proportion  as  a  government  is  free,  the  more  compli- 
cated it  is.  "Simplicity  belongs  to  those  only  where  one  will  gov- 
erns all,  where  one  mind  directs  all  and  all  others  obey;  where  few 
arrangements  are  required,  because  no  checks  to  power  are  allowed; 
where  law  is  not  a  science,  but  a  mandate  to  be  followed  and  not  to 
be  discussed;  where  it  is  not  a  rule  for  permanent  action,  but  a 
capricious  and  arbitrary  dictate  of  the  hour." 

Burke,  who  during  the  last  century,  discoursed  with  great  force 
and  vigor  in  regard  to  the  perfection  of  government,  declared  that 
whenever  men  have  a  right  to  do  everything  they  want  everything, 
and  that  in  republics  great  vigilance  is  necessary  to  guard  against 
the  captivations  of  theories  as  well  as  the  approaches  of  more  insidious 
foes.  And  this  is  true,  for  government  may  be  overthrown  by 
indirect  means  as  well  as  direct  and  open  assaults. 

'  A  thousand  years  scarce  serves  to  form  a  State, 
An  hour  may  lay  it  in  the  dust;   and  when 
Can  man  its  shattered  splendors  renovate, 

Recall  its  virtues  back  and  vanquish  Time  and  Fate." 

The  greatest  engine  of  moral  power  known  to  human  affairs  is 
an  organized,  prosperous  State.  All  that  man  in  his  individual 
capacity  can  do,  all  that  he  can  effect  by  his  private  fraternities,  by 
his  ingenious  discoveries  and  wonders  of  art,  or  by  his  influence 
over  others — is  as  nothing  compared  with  the  collective,  perpetu- 
ated influence  on  human  affairs  and  human  happiness,  of  a 
well-constituted,  powerful  commonwealth. 

"It  blesses  generations  with  its  sweet  influences;  even  the 
barren  earth  seems  to  pour  out  its  fruits  under  a  system  where 
rights  and  property  are  secure,  while  her  fairest  gardens  are 
blighted  by  despotism." 

In  this  country  no  State  exists  or  can  exist  without  a  govern- 
ment organized  under  a  constitution  with  which  the  people  them- 
selves have  had  something  to  do  in  framing  and  adopting.  But 
the  value  of  a  constitution  is  relative  as  well  as  possible,  and  no 
nation  is  to  perish  that  a  political  theory  or  political  abstraction 
may  strive  vainly  for  realization.  The  life  of  a  people  can  not  be 
sacrificed  for  a  political  form  or  a  political  dogma.  That  is 


126  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

admitted.  Was  the  Constitution  that  we  made  good  or  bad? 
Have  its  theories  proved  delusive  and  has  its  system  of  govern- 
ment become  impracticable?  Have  things  so  changed  that  it  is 
now  necessary  to  discard  it  and  make  another  one  that  shall 
conform  to  a  changed  order  of  things?  Wherein,  let  us  inquire, 
has  this  Constitution  failed?  what  are  the  changes  that  are 
demanded,  and  in  what  respect  shall  it  be  amended? 

Amendments  are  provided  for  in  the  Constitution;  are  the 
changes  which  are  demanded  so  radical  in  their  character  they  can 
not  be  met  by  amendments  to  be  submitted  to  the  people  in  the 
manner  provided  for  in  the  instrument  itself?  Is  a  constitutional 
convention  necessary,  and  if  so,  what  are  its  needs? 

The  subject  of  "Needs  of  a  Constitutional  Convention"  may  be 
considered  either  affirmatively  or  negatively.  You  may,  if  you 
please,  assume  that  the  objections  to  the  present  Constitution  are  so 
numerous,  so  well  known  and  widely  admitted  as  to  do  nothing  more, 
as  we  have  said,  than  enumerate  them  and  thereby  avoid  all  discus- 
sion whatever.  On  the  contrary,  if  no  such  state  of  things  exists, 
if  no  such  assumption  can  be  indulged  in,  and  if  everything 
alleged  is  controverted,  then  the  question  becomes  still  more  inter- 
esting. Let  us  see. 

The  Constitution  was  submitted  to  the  people  for  adoption  or 
rejection  at  an  election  which  was  held  on  the  first  Saturday  in 
July,  1870,  and  was  adopted  by  a  most  overwhelming  vote. 

It  required  a  considerable  legislation  to  put  the  Constitution 
into  operation,  and  it  was  over  a  year  before  many  of  the  laws  were 
passed  and  went  into  effect,  so  that,  while  the  Constitution  has  been 
in  force  twenty  years,  the  reform  measures  passed  in  accordance 
with  the  same,  have  not  been  in  operation  that  length  of  time. 

We  have,  during  the  period  which  has  intervened,  been  a  some- 
what close  observer  of  its  workings,  and  we  have  yet  to  learn  that 
it  has  proved  so  unsatisfactory  as  to  require  many  very  radical 
amendments,  although  expressions  have  reached  us  now  and  then  to 
that  effect.  Those  who  have  gone  to  the  extreme  of  declaring  that 
we  have  outgrown  the  Constitution,  and  have  denounced  the  slow 
method  of  amending  the  same,  have  not,  we  think,  bestowed  very 
much  thought  upon  the  subject,  and  have  exercised  but  very  little 
discrimination  as  to  whether  the  reforms  that  they  wish  to  bring 
about,  could  be  effected  by  the  ordinary  methods  of  legislation  or 
otherwise. 


IS  A  CONSTITUTION  At    CONVENTION  NEEDED.  12? 

It  is  true  that  two  years  ago  this  matter  was  given  some  attention 
by  the  General  Assembly.  A  resolution  was  introduced  in  favor 
of  the  calling  of  a  convention,  but  it  was  defeated  by  a  considerable 
majority.  At  that  time  the  House  resolved  itself  into  a  committee 
of  the  whole  and  indulged  in  general  debate.  It  did  not,  however, 
as  it  appears  from  the  records,  limit  the  discussion  to  its  own  mem- 
bers, but  invited  outsiders  to  participate.  Among  those  who  were 
called  upon  to  take  part  was  a  distinguished  member  of  the  bar,  a 
resident  of  the  city  of  Chicago,  and  a  gentleman  of  large  experience 
and  observation.  His  remarks  were  published  at  the  time,  and  as  they 
have  since  been  frequently  referred  to,  we  will  briefly  call  attention 
to  them.  He  reviewed  at  considerable  length  the  present  condition 
of  things,  and  gave  his  experience  of  the  difficulties  and  delays 
which  ensued  in  endeavoring  to  legislate  under  the  present  Consti- 
tution; that  evils  had  already  developed  that  he  considered  of  such 
magnitude  as  to  be  difficult,  if  not  impossible,  to  be  remedied  by 
ordinary  legislation;  that  corporations  seemed  to  be  multiplying  to 
an  alarming  extent,  and  that,  too,  without  check  or  limit:  that  the 
entire  judicial  system  was  defective  in  its  organization  and  adminis- 
tration; that  the  Supreme  Court  is  behind  the  age  or  rather  the 
needs  and  the  reputation  of  this  State,  because  of  its  nomadic  char- 
acter; that  its  reputation  suffered  because  of  the  division  of  its 
work,  and  the  numerous  places  where  it  is  held,  and  the  small 
attention  given  by  the  united  court  to  the  business  that  comes 
before  it — a  thing  which  should  be  corrected  in  a  new  Constitution; 
that  the  idea  of  uniformity  of  laws,  which  was  one  of  the  chief 
characteristics  of  the  Constitution,  was  impracticable  when  applied 
to  counties,  towns  and  townships,  which  varied  so  diametrically  in 
many  of  their  wants  and  necessities,  that  the  legislation  which  was 
required  for  Chicago  and  Cook  county  was  entirely  inadequate;  that 
local  self-government  was  interfered  with;  that  the  provisions  in 
the  present  Constitution  in  regard  to  amendments  were  too  cumber- 
some, and  were  attended  witli  too  much  delay;  and  ended  by  declar- 
ing that  "  It  (the  Constitution)  is  a  document,  prepared  by  men  who 
thought  they  combined,  not  only  the  wisdom  of  the  years  in  which 
they  made  it,  but  the  wisdom  of  all  the  years  to  come.  In  a  broad 
way,  in  a  wide  sense,  that  general  suggestion  covers  my  objection 
-to  the  Constitution  of  1870."  His  specific  objections  were  immedi- 
ately answered  by  Mr.  Schuwerk  and  Hon.  James  Miller,  of  Stark 
county,  lately  deceased,  and  who  was,  we  believe,  at  the  time  of  his 


128  CONSTITUTIONAL   HISTORY    OF   ILLINOIS. 

death,  speaker  of  the  House,  and  as  we  believe,  fully  and  completely. 
They  showed,  at  the  time,  that  there  was  not  one  of  the  things  that 
were  complained  of  but  what  could  be  remedied  by  the  General 
Assembly,  or  by  submitting  to  the  people  amendments  to  the  Con- 
stitution itself,  and  that  a  constitutional  convention  was  entirely 
unnecessary.  Since  that  time  the  matter  has  been  discussed  to  some 
extent  in  the  public  press,  and  two  entirely  different  views  have 
beeii  presented  which  are  quite  interesting. 


CHAPTEK  XXY. 

Radicalism  and  Conservatism. 

OK  the  fifth  day  of  January  of  this  year  (1891)  there  was  pub- 
lished in  one  of  the  leading  journals  of  Chicago,  the  "Chicago 
Herald,"  an  editorial,  reiterating  the  same  ideas  in  substance  as  those 
put  forth  by  Mr.  Jewett,  in  which  a  direct  appeal  is  made  to  the 
present  General  Assembly  to  take  steps  to  call  a  convention  to 
revise  the  Constitution,  as  the  present  Constitution  had  long  ago 
been  outgrown;  that  it  answered  its  purposes  for  a  time,  but  it  was 
hedged  about  by  so  many  obstacles  to  the  free  expression  of  the 
public  will,  it  was  so  completely  fortified  against  reasonable  and 
necessary  amendment,  and  it  was  drawn  by  men  who  had  such  an 
overpowering  confidence  in  their  own  wisdom  and  ability  to  regu- 
late human  government  for  all  time,  that  it  long  since  ceased  to  be 
useful,  and  became  merely  a  brake  upon  the  wheels  of  progress. 
The  entire  article  is  as  follows : 

"A    CONSTITUTIONAL   CONVENTION. 

The  great  need  of  the  State  of  Illinois  at  this  time  is  a  new  Con- 
stitution. The  instrument  of  1870  was  long  ago  outgrown.  It 
answered  its  purpose  for  a  time,  but  it  was  hedged  about  by  so  many 
obstacles  to  the  free  expression  of  the  public  will,  it  was  so  com- 
pletely fortified  against  reasonable  and  necessary  amendment,  and  it 
was  drawn  by  men  who  had  such  an  overpowering  confidence  in 
their  own  wisdom  and  ability  to  regulate  human  government  for  all 
time,  that  it  long  since  ceased  to  be  useful,  and  became  merely  a 
brake  upon  the  wheels  of  progress. 


RADICALISM  AND  CONSERVATISM.  129 

It  Las  been  stated  in  'The  Herald'  that  all  good  citizens  should 
combine  this  winter  in  favor  of  the  submission  of  one  amendment — 
only  one  being  possible  at  any  general  election — that  would  strike  out 
of  that  instrument  the  absurd  clause  which  provides  that  only  one 
section  of  the  Constitution  can  be  amended  at  a  time;  but  a  careful 
examination  of  the  organic  law  and  due  consideration  of  the  needs 
of  the  city  and  the  State  will  convince  most  people  that  to  attempt 
to  whip  the  Constitution  into  shape  by  amendment  would  be  a  task 
involving  years  of  delay  and  labors  almost  superhuman.  It  would 
be  better  for  all  concerned  to  call  a  constitutional  conveniion,  and  to 
prepare  an  entirely  new  instrument  for  submission  to  the  people. 
In  no  other  way  can  our  fundamental  law  be  brought  down  to  date 
and  the  egregious  mistakes  of  1870  be  corrected. 

When  the  present  Constitution  was  submitted,  Chicago  was  a 
city  of  300,000  inhabitants,  and  not  a  man  in  Illinois  dreamed  that 
within  a  score  of  years  there  would  be  a  million  and  a  quarter  of 
people  within  its  limits.  The  Constitution  is  peculiarl  oppressive 
to  this  great  city,  whose  needs  have  outgrown  the  limitations  placed 
upon  it,  but  it  is  also  obnoxious  to  the  people  of  the  State  at  large. 
This  is  true  in  particular  in  the  matter  of  revenue.  Under  existing 
law  the  corporations  of  the  State  escape  just  taxation,  and  the  bur- 
dens of  government  fall  with  greatest  severity  upon  the  poor.  The 
system  of  minority  representation  is  also  a  fraud  and  a  disgrace  to 
an  intelligent  people.  It  makes  the  effective  expression  of  their 
will  at  the  polls  a  matter  of  accident,  and  not  infrequently  defeats 
the  very  objects  that  it  was  ostensibly  designed  to  serve.  In  almost 
every  direction  it  blocks  with  mandatory  prohibition  every  avenue 
of  escape  from  wornout  ideas,  and  conclusively  'bars  the  way  to  use- 
ful and  necessary  reforms  born  of  human  progress  and  the  growing 
demands  of  city  and  State.  It  is  antiquated,  narrow  and  cranky, 
and  it  must  soon  give  place  to  something  that  will  meet  the  require- 
ments of  an  enterprising  people. 

The  General  Assembly,  which  meets  this  week,  will  fail  of  its 
duty  if  it  shall  neglect  to  do  its  part  toward  calling  a  convention 
empowered  to  prepare  and  submit  to  the  electors  of  the  State  a 
new  organic  law." 

This  was  followed  by  several  other  articles  of  a  similar  character, 
to  which  the  "  Chicago  Tribune  "  replied  by  a  series  of  broadsides 
in  the  following  vigorous  manner: 
9 


130  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

NO  NEW  CONSTITUTION  WANTED. 

Again  the  tax-devourers  through  their  organs  and  other  agen- 
cies are  howling  for  a  new  constitution,  and  are  urging  the  General 
Assembly  "  to  do  its  part  toward  calling  a  convention,  to  prepare 
and  submit  to  the  electors  of  the  State  a  new  organic  law."  The 
existing  Constitution  it  appears  is  not  satisfactory  to  the  tax-devour- 
ers, the  beneficiaries  of  the  mortgage  bonds,  the  lobbyists,  special 
bill  venders,  and  all  the  tribe  of  public  plunderers  and  leeches  of 
the  kind  that  utilized  the  old  Constitution  to  the  full  extent  of  their 
opportunities  and  their  greed.  The  existing  Constitution  was  not 
framed  as  the  organs  of  the  tax-devourers  would  have  it.  by  "  Men 
with  an  overpowering  confidence  in  their  own  wisdom,"  but  by  men 
who  had  the  sound  judgment  to  carry  out  the  wishes  of  the  people 
who  elected  them  in  devising  an  instrument  of  fundamental  law, 
which  would  prevent  the  knavish  and  evil  practices  of  unfaithful 
legislators,  carried  on  under  the  constitution  which  it  replaced — the 
selling  of  special  franchises  and  special  charters,  the  taxing  and 
bonding  of  the  people  to  an  oppressive  degree,  the  granting  of 
special  privileges  to  corporations  without  consulting  the  wishes  and 
the  interests  of  the  people.  The  existing  Constitution  was  framed 
in  accordance  with  the  desires  of  the  people  of  the  State,  who 
wanted  protection  from  corrupt  and  mercenary  members  of  the 
Legislature,  and  their  decision  was  arrived  at  after  ample  discussion 
by  themselves  and  the  mature  deliberation  of  their  freely  chosen 
representatives,  who  were  all  fully  aware  of  the  evils  they  had  to 
contend  against. 

The  Constitution  of  1870  has  admirably  fulfilled  the  purpose  of 
its  adoption  by  an  almost  unanimous  vote.  It  has  done  away  with 
the  unendurable  abuses  that  were  practiced  in  all  the  Legislatures 
prior  to  1870. 

The  present  agitation  for  a  new  convention  and  a  new  Constitu- 
tion is  intended  to  help  the  tax-devourers,  while  placing  responsi- 
bility for  complicity  with  their  schemes  on  the  people  at  large. 
This  plan  will  not  succeed.  The  honest  people  of  the  State  outside 
of  Chicago  who  are  well  satisfied  with  the  Constitution  and  the 
honest  people  of  the  city  who  object  to  more  taxation  for  the  bene- 
fit of  professional  tax-eaters  will  not  submit  to  a  new  convention  in 
which  the  lobbyists,  the  sharpers,  and  the  Chicago  Tammanyites 
might,  through  the  agency  of  political  machines,  have  a  majority. 
A  new  convention  might  be  called,  but  the  people  would  not  ratify 


RADICALISM  AND  CONSERVATISM.  131 

the  product  of  its  deliberations.     There  is  no  occasion  to  incur  the 
expense. 

If  necessary  the  provision  of  the  Constitution  preventing  the 
submission  of  more  than  one  amendment  at  any  one  general  elec- 
tion may  be  repealed.  Thereafter  as  many  amendments  as  may 
seem  proper  may  be  submitted,  for  popular  approval  or  rejection. 
If  certain  provisions  of  the  present  fundamental  law  are  objection- 
able the  people  will  have  the  power  to  rescind  or  to  eliminate 
them.  But  let  us  not  risk  the  takino-  down  of  all  the  bars  that  have 

o 

been  put  up  to  keep  the  tax-devourers,  special  charter  venders,  and 
corporation  agents  in  their  proper  places. 

AGAIN  THE  WOLFISH  HOWL  FOK  A  NEW  CONSTITUTION. 

A  few  tax-eaters  and  certain  newspapers,  organs  of  officeholders, 
are  clamoring  for  a  new  Constitution.  But  the  people  of  the  State 
of  Illinois  are  making  no  such  demand.  They  are  holding  no  meet- 
ings to  ask  for  a  constitutional  convention.  They  are  making  the 
question  an  issue  at  no  election.  The  papers  which  represent  them 
say  nothing  on  the  subject  or  speak  only  to  denounce  the  proposi- 
tion. Among  the  grievances  of  the  farmers  set  forth  in  their 
platforms  and  resolves  the  Illinois  Constitution  finds  no  place.  No 
city  workingmen  have  said  a  word  against  it. 

It  is  evident  that  the  masses  are  not  troubled  by  the  assertion 
that  they  "tied  their  hands"  when  they  adopted  their  present 
fundamental  law  and  now  "  want  them  unbound."  Of  course  they  are 
not,  for  they  do  not  believe  it.  They  know  it  to  be  untrue.  They 
have  a  better  idea  of  the  nature  of  State  Constitutions  than  certain 
editorial  writers  who  set  themselves  up  as  guides  of  the  multitude, 
though  ignorant  of  the  subjects  concerning  which  they  give  raw 
advice.  When  "  The  Tribune  "  sees  papers  posing  as  public  instruct- 
ors, and  yet  unacquainted  with  the  fundamental  principles  of  the 
matters  they  write  about,  it  confesses  that  it  does  feel  exasperated 
and  would  be  glad  to  see  a  law  passed  which  would  keep  such  sheets 
from  making  fools  of  themselves  and  perhaps  befooling  their  readers. 

The  Constitutions  of  States  which  have  a  representative  form  of 
government  are  not  limitations  of  the  powers  of,  and  do  not  tie  the 
hands  of,  the  people  who  make  them,  but  of  the  representatives, 
State  and  municipal,  to  whom  the  people  intrust  from  time  to  time 
legislative  functions.  If  it  were  certain  that  Legislatures  would  be 
composed  of  the  wisest  and  most  honest  men  in  the  community, 
who  would  never  boodle,  steal  or  otherwise  abuse  their  trust,  there 


13.2  CONSTITUTIONAL    HISTORY  OF    ILLINOIS. 

would  be  no  need  of  a  Constitution  more  than  a  few  lines  long. 
All  that  would  be  necessary  would  be  to  iix  the  number  of  mem- 
bers of  the  Legislature  and  their  term  of  office,  and  to  make  brief 
provision  for  the  executive  and  judicial  departments  of  the  govern- 
ment. But  the  experience  of  every  State  has  proved  that  legislators 
will  abuse  their  trust,  and  that  they  can  be  bought  or  influenced  to 
do  things  which  the  people,  if  they  could  come  together,  as  in 
town-meeting,  would  never  vote  to  do.  Hence,  the  steady  evolu- 
tion of  American  State  Constitutions,  with  their  increasing  restric- 
tions— not  on  the  people,  but  on  those  agents  whom  the  people, 
unable  to  meet  in  a  primary  body,  select  as  their  representatives 
and  administrators  to  act  for  them. 

Such  has  been  the  experience  of  Illinois.  The  Constitution  of 
1818  gave  large  powers  to  the  Legislature.  That  body  abused  them 
by  plunging  headlong  into  avast  wildcat  scheme  of  internal  improve- 
ments for  the  bench' t  of  contractors,  which  bankrupt  the  State. 
The  result  was  the  Constitution  of  1848,  which  stripped  the  Legis- 
lature of  its  power  to  abuse  its  trust  and  betray  the  people  by  run- 
ning up  a  crushing  State  debt.  But  the  men  who  made  that  Con- 
stitution were  not  far-seeing.  They  did  not  perceive  that  it  was  as 
important  to  protect  the  minor  political  divisions  of  the  State  from 
financial  wreck  and  ruin  as  it  was  the  State  itself.  The  legislators 
elected  under  the  organic  law  of  184-8  were  even  more  false  to  their 
trust  than  those  chosen  under  that  of  1818.  Their  professions  to 
their  constituents  before  election  were  admirable;  their  practices 
after  election,  when  they  got  to  Springfield,  were  villainous.  They 
empowered  the  city  council  of  Chicago  to  issue  millions  of  bonds 
for  all  sorts  of  schemes  without  consulting  the  people.  They  put 
it  in  the  power  of  the  speculators  of  smaller  municipalities  to  fasten 
mortgages  on  the  taxpayers  to  help  railroads,  rolling  mills,  grist 
mills,  coal  mines,  glass  factories,  woolen  mills,  and  every  variety  of 
private  enterprise.  These  corrupt  members  enacted,  with  the  aid 
of  the  lobby,  and  sold  to  corporations,  charters  gran  ting  them  special 
privileges  and  immunities.  They  were  given  by  the  Constitution 
authority  to  pass  general  laws  on  the  subject  of  corporations,  but 
they  refused  persistently  to  do  it,  for  it  would  have  deprived  them 
of  the  boodle  made  from  the  sale  of  special  charters.  They  ex- 
tended the  terms  of  officers  without  consulting  the  people,  and 
increased  their  fees  and  salaries,  though  already  too  high. 

The  people  stood  this  misconduct  on  the  part  of  their  agents 


RADICALISM  AND  CONSERVATISM.  133 

for  many  years,  for  they  promised  before  every  election  to  do 
better  "the  next  time."  Finally,  unable  to  stand  it  any  longer, 
they  ordered  a  convention  and  adopted  the  Constitution  of  1870, 
and  limited  still  further,  not  their  own  powers,  which  are  still  as 
sovereign  as  they  ever  were,  but  those  of  their  representatives. 
For  their  own  protection  they  put  a  curb  not  merely  on  members  of 
the  General  Assembly  but  on  county  boards,  city  councils  and 
township  officers.  They  took  from  them,  large  and  small,  the 
power  to  blanket-mortgage  the  property  of  their  constituents  and 
to  tax  them  till  they  staggered. 

The  people  of  Illinois  are  not  dissatisfied  with  those  restrictions 
on  representatives.  To  them  they  owe  low  taxes  and  arrest  of 
debts,  and  they  do  not  wish  to  untie  the  hands  of  their  agents  and 
let  them  again  plunder  at  their  sweet  will  in  partnership  with  the 
vultures  of  the  lobby.  On  the  contrary,  they  are,  if  anything,  in 
favor  of  drawing  the  constitutional  strings  a  little  tighter.  The 
people  have  not  been  pleased  altogether  with  the  conduct  of  their 
representatives  in  the  General  Assembly  for  the  last  few  years. 
They  have  seen  on  the  part  of  too  many  of  them  a  disposition  to 
abuse  the  powers  they  have,  and  are  inclined  to  think  they  could  be 
curtailed  judiciously. 

Thus  it  will  be  seen  that  those  who  are  working  for  a  new  "free- 
and-easy,  go-as-you-please  "  Constitution  are  not  trying  to  "untie 
the  hands  of  the  people"  but  of  their  agents.  They  want  to  secure 
for  the  latter  the  same  unlimited  power  of  attorney  that  they  had 
under  the  Constitution  of  1848.  They  want  to  revive  the  profitable 
industry  of  drawing  up  charters  by  the  hundred,  granting  special 
franchises,  and  then  lobbying  them  through  the  Legislature.  They 
want  to  give  again  to  the  General  Assembly  its  power  to  create 
monopolies  for  a  price.  They  hanker  after  the  old  days  when  pub- 
lic taxes  and  public  funds  could  be  diverted  to  private  uses.  They 
wish  to  see  the  wealth  which  has  been  saved  up  during  twenty  years 
of  low  taxes  and  arrested  mortgages  handed  over  to  the  unchecked 
control  of  the  tax-eaters.  They  want  to  let  down  the  bars  so  that 
the  thieves  and  speculators  may  get  into  the  fat  pastures  they  have 
been  kept  out  of  so  long. 

This  is  what  they  want,  but  they  dare  not  confess  it.  The  people 
see  through  their  little  game,  and  neither  in  the  Legislature  nor  at 
the  polls  can  they  get  the  necessary  number  of  votes.  The  people 
will  not  untie  the  hands  of  their  agents,  knowing  well  that  the  first 


134  CONSTITUTIONAL  HISTORY    OF   ILLINOIS. 

use  they  would  make  of  their  freedom  would  be  to  abuse  their 
power  and  to  plunder  their  constituents,  as  was  done  under  the  Con- 
stitution of  1848. 

The  "Chicago  Herald"  says  that  it  is  useless  to  prepare  bills 
giving  the  Chicago  justices  fixed  salaries  instead  of  fees,  because 
such  legislation  would  be  in  violation  of  the  Constitution.  It  says  : 

"Any  legislation  touching  justices  of  the  peace,  police  magis- 
trates, and  constables  must  apply  to  the  entire  State,  and  it  is  highly 
improbable  that  while  this  stupid  enactment  remains  in  force  an 
amendment  consistent  with  it  can  be  devised  which  will  satisfy  the 
General  Assembly,  for  there  is  little  dissatisfaction  throughout  the 
interior  with  the  working  of  the  justices'  law  as  it  stands." 

This  sweeping  assertion  is  based  on  that  clause  of  the  Constitu- 
tion which  forbids  the  Legislature  to  pass  special  laws  "regulating 
the  jurisdiction  and  duties  of  justices  of  the  peace,  police  magis- 
trates, and  constables."  But  no  bill  which  has  been  drafted  as  }7et 
violates  this  provision.  The  pay  of  justices  has  nothing  to  do  with 
their  jurisdiction  or  duties.  The  subject  of  pay  of  public  officers 
is  touched  on  elsewhere  in  the  Constitution,  where  it  is  provided 
that  the  fees  of  public  officers  shall  not  be  increased  or  diminished 
"  during  the  term  for  which  said  officers  are  elected  or  appointed." 
The  terms  of  the  present  Chicago  justices  are  about  expiring. 
This  is  just  the  time,  then,  to  fix  the  pay  of  their  successors. 

The  "  Herald  "  does  not  seem  to  be  aware  of — or  suppresses — 
the  fact  that  while  the  fees  of  justices  of  the  peace  are  uniform 
throughout  the  State  the  Constitution  does  not  require  it.  The 
Legislature  is  given  power  to  divide  the  counties  of  the  State  into 
three  classes  and  fix  the  fees  for  county  and  township  officers  in 
each  class.  It  has  done  so  in  the  case  of  many  officers.  Thus  the 
fees  Cook  county  constables  are  permitted  to  charge  are  smaller 
than  those  of  othei  constables  throughout  the  State.  As  Cook 
county  is  a  county  of  the  third  class  the  Legislature  can  give  the 
justices  of  the  peace  therein  just  what  pay  it  pleases. 

But  the  power  of  the  General  Assembly  to  give  Chicago  jus- 
tices salaries  does  not  rest  on  this  classification  of  counties,  but  on 
the  fact  that  these  justices  are  a  class  by  themselves  and  that  the 
Legislature  is  nowhere  forbidden  to  provide  for  their  payment  in 
a  different  way  from  that  of  other  justices.  It  can  not  give  them 
broader  or  narrower  jurisdiction  than  other  justices.  It  can  not 
provide  that  business  shall  be  carried  on  in  their  courts  in  a  special 


RADICALISM  AND   CONSERVATISM.  135 

way,  but  when  it  is  their  payment  which  is  concerned  the  discre- 
tion of  the  Legislature  is  unlimited — except  that  there  must  be  no 
change  during  a  man's  term  of  office. 

All  this  is  so  simple,  so  plain,  that  the  "  Herald  "  must  know  it. 
But  for  some  reason  that  paper  is  dissatisfied  with  the  present  Con- 
stitution and  wants  a  convention  called  to  frame  a  new  one.  It 
will  not  accept  the  suggestion  of  the  "  The  Tribune  "  that  provis- 
ion be  made  for  the  submission  of  many  amendments  at  the  same 
time,  instead  of  but  one,  as  now.  It  says : 

"  The  Constitution  of  1870  is  a  nuisance  to  the  commonwealth. 
It  bars  the  people's  way  in  every  direction.  It  locked  all  the  doors 
of  progress  and  reform  and  put  the  keys  in  the  pockets  of  a  num- 
ber of  conceited  cranks  who  fancied  that  when  they  got  through 
tinkering  a  Constitution  the  State  would  cease  growing,  and  we 
should  live  according  to  the  code  of  rules  they  had  agreed  upon. 
The  time  has  come  for  Illinois  to  break  its  bonds.  The  Consti- 
tution of  1870  is  not  worth  amending.  It  must  go." 

And  it  has  much  more  to  say  of  the  same  kind.  But  there  is  a 
remarkable  absence  of  specific  objections  to  the  present  organic  law. 
There  is  no  enumeration  of  the  things  which  ought  to  be  done,  the 
doing  of  which  it  prevents.  The  allegation  that  under  it  Chicago 
justices  of  the  peace  can  not  be  paid  by  salaries  is  the  only  definite 
complaint  yet  made.  If  that  were  true — which  it  is  not — it  would 
not  justify  a  constitutional  convention. 

There  is  something  suspicious  in  these  vague  accusations,' in  this 
assertion  that  changes  are  necessary,  without  specifying  the  changes. 
Can  it  be  that  the  change  which  these  gentlemen  hanker  after  but 
dare  not  state,  relates  to  the  beneficent  provision  preventing  munici- 
palities plunging  into  unlimited  expenditures  and  wrapping  them- 
selves in  mortgages  as  in  a  blanket?  For  years  many  have  been 
trying  to  let  down  the  bars  which  have  kept  the  tax-eaters  out  of 
the  pasture.  They  understand  perfectly  that  an  amendment  repeal 
ing  the  debt-limiting  provisions  of  the  Constitution  would  be 
beaten  by  200,000  votes,  but  they  hope  that  if  a  convention  were 
called  to  frame  a  new  Constitution  it  might  be  handled  so  skillfully 
as  to  slip  in  a  clause  which  could  be  interpreted  so  as  to  give  every 
municipality  the  power  to  borrow  as  long  as  it  could  find  lenders. 

Unless  the  "defects "of  the  present  Constitution  are  stated 
more  specifically  than  they  have  been,  it  must  be  assumed  that 
the  wish  to  repeal  it  is  confined  to  the  tax-grabbers." 


CHAPTER  XXYL 

Limitations  and   Restraints    are  Necessary   in   all   Free 

Governments. 

AS  indicators  of  public  feeling  or  public  opinion  the  views  here 
presented  may  probably  be  taken  as  fairly  representing  two 
theories  of  State  government  and  two  sets  of  opinions  which  are 
entertained  by  those  differing  in  politics  and  in  regard  to  the  various 
economic  questions  now  agitating  the  country. 

On  the  one  side  are  found  those  who  resent  all  interference  on 
the  part  of  the  State  with  local  self-government  and  who  are  for 
removing  all  restraints  upon  legislation  in  every  form,  either  by  the 
State  or  by  municipalities,  and  who  are  especially  indignant  at  those 
who,  in  framing  the  Constitution,  undertook  to  set  bounds  to  the 
levying  and  collecting  of  taxes  and  the  debt  power  of  city  councils; 
while  on  the  other  are  ranged  those  who  are  of  a  more  conserva- 
tive character,  and  who  believe  that  it  is  not  only  judicious  for  the 
people  to  have  some  fixed  rides  in  regard  to  these  subjects,  but  it 
corresponds  with  the  most  advanced  and  enlightened  views  of  all 
civilized  governments,  that  the  people  ought  in  many  things  to  limit 
themselves.  The  experience  of  our  own  State  has,  we  think,  not 
only  demonstrated  the  wisdom  of  such  a  course  of  procedure,  but 
every  other  State  will  substantiate  it. 

It  is  necessary  to  regulate  the  association  of  men  with  each 
other  to  prevent  the  invasion  of  their  liberties  and  rights,  and  to 
promote  that  good  which  society  is  willing  to  do  for  its  members. 

There  is  a  class  of  men  who  consider  it  a  great  hardship  that 
the  Legislature,  and  counties,  cities,  villages  and  all  kinds  of  munici- 
pal corporations,  are  not  permitted  to  do  just  as  they  please,  and 
incur  debts  to  any  extent,  and  for  any  purpose  that  speculators  and 
schemers  may  devise,  but  everybody  knows  that  if  the  people  were 
not  protected  from  the  lawlessness  and  extravagance  of  their  own 
representatives,  that  they  would  be  ruined,  and  general  insolvency 
ensue.  It  is  very  easy  to  cry  out  against  what  is  termed  paternal 
governments,  against  public  guardians,  and  against  every  form  of 
restraint  on  legislation,  as  an  infringement  of  the  liberties  of  the 

(136) 


LmiTATIOXS  AND  RESTRAINTS  NECESSARY.  137 

people.  13ut  there  never  was  a  voluntary  organization  of  men 
associated  together  to  carry  on  any  great  enterprise  in  which  each 
and  every  one  had  an  interest,  but  that  they  voluntarily  agreed  to,  and 
entered  into  certain  contracts  and  undertakings,  and  adopted  rules 
and  regulations  for  their  government  and  guidance.  Any  other 
course  would  be  simply  to  inaugurate  chaos  and  invite  anarchy. 

The  individuals  who  compose  a  State  are  not  all  of  the  same 
mind,  and  in  the  nature  of  things  can  not  be ;  therefore  it  is,  as  all 
who  have  given  the  subject  any  study  know,  that  there  must  be 
restraints  and  limitations  in  all  free  governments. 

And  this  is  the  more  necessary  when  we  consider  the  varied  and 
diverse  character  of  the  people  composing  the  State,  and  who  would, 
if  left  to  their  own  notions,  engage,  in  every  conceivable  enterprise, 
from  the  establishment  and  support  of  a  State  church  down  to  run- 
ning all  railroads  at  State  expense,  and  carrying  the  people  for 
nothing. 

As  the  discussion  has  proceeded  we  have  observed  a  consider- 
able advance  in  the  positions  of  those  who  think  that  we  ought  to 
have  a  constitutional  convention,  and  they  have  grown  more  bold 
and  aggressive.  The  Legislature  is  now  in  session,  and  they  demand 
that  all  restrictions  on  legislation  must  be  removed,  and  they  now 
say:  "The  people  want  a  constitutional  convention.  The  State 
urgently  demands  that  relief  be  had  from  the  rusty  shackles  of  a 
code,  worthy  only  of  the  unprogressive  and  unintelligent.  They 
demand  the  right  to  make  their  laws  freely,  according  to  changed 
conditions.  The  old  Constitution  must  retire  with  its  ancient 
predecessor." 

Now  it  may  be  that  "the  State"  or  the  people,  are  prepared  to 
eliminate  from  the  present  Constitution  all  restrictions  on  special 
legislation,  special  charters  and  special  privileges,  and  return  to  the 
old  order  of  things  as  they  existed  under  the  Constitution  of  1848. 
If  they  are  ready  to  do  this,  we  are  perfectly  willing  that  they 
should  indicate  it  by  their  votes.  The  people  adopted  the  present 
Constitution,  and .  they  are  responsible,  of  course,  for  its  longer 
continuance.  If  they  say,  after  a  full  and  fair  consideration,  that 
the  time  has  come  to  change  it,  to  throw  it  off  and  strike  off  all 
restraints,  "shackles"  or  "fetters,"  if  you  please  to  call  them  so,  then 
we  shall  be  content.  It  is  not  a  personal  matter  with  those  who 
framed  the  Constitution,  for  most  of  them  are  already  in  their 
graves.  It  is,  we  repeat,  a  matter  to  be  determined  by  the  people, 


138  CONSTITUTIONAL  HISTORY    OF    ILLINOIS* 

in  their  sober  senses,  and  not  by  the  "high  rollers,"  who  are 
swinging  their  hats  and  crying  "  hoop  la,"  before  the  winning  post 
is  reached.  If  the  experience  of  the  past  amounts  to  nothing,  then 
let  its  lessons  go  unheeded. 

We  stand  upon  the  threshold  of  the  mighty  future,  and  all  the 
events  of  the  past  seem  to  dwindle  in  their  dimensions  and  appear 
insignificant. 

We  stand  in  the  midst  of  events  which  may  result  in  a  catas- 
trophe or  a  revolution.  What  is  in  store  for  us  in  the  near  future, 
no  one  can  tell.  Let  us  wait  and  see. 

The  State  of  Illinois  has  during  its  brief  existence  of  not  quite 
seventy-three  years  held  four  constitutional  conventions,  and  it  has 
been  our  fortune,  good  or  bad,  to  have  been  a  member  of  two  of 
them,  and  on  several  occasions  before,  we  have  heard  the  charge, 
that  those  who  engag'e  in  the  business  of  framing  a  constitution 
act  as  if  they  thought  that  they  possessed  all  of  the  wisdom  of  the 
past,  the  present  and  the  future,  and  acted  as  if  they  thought  that 
when  they  died  all  wisdom  would  die  with  them.  Now  the  charge 
of  having  the  "  big  head,"  for  that  is  what  it  all  amounts  to,  is  a 
charge  easily  made  and  may  be  hard  to  answer,  especially  if  those 
who  are  charged  with  the  offense  are  arraigned  before  a  tribunal 
that  they  can  not  attend,  and  before  judges  that  refuse  to  heed  their 
mute  appeals.  But  as  it  is  a  charge  entirely  personal  in  its 
character,  we  submit  that  it  would  be  far  more  prudent  on  the  part 
of  those  making  such  charges,  to  husband  their  resources  and 
proceed  to  answer  their  arguments,  rather  than  ''carp  at  their 
presence." 

The  dervise  in  the  Arabian  tale  did  not  hesitate  to  abandon  to 
his  comrade  the  camels  with  their  load  of  jewels  and  gold,  while  he 
retained  the  casket  of  that  mysterious  juice  which  enabled  him  to 
behold  at  a  glance  all  the  hidden  riches  of  the  universe.  Surely  it 
is  no  exaggeration  to  say  that  no  external  advantage  is  to  be  com- 
pared with  that  purification  of  the  intellectual  eye,  which  gives 
us  to  contemplate  the  infinite  wealth  of  the  mental  world,  all  the 
hoarded  treasures  of  its  primeval  dynasties,  all  the  shapeless  ore  of 
its  yet  unexplored  mines.  A  constitution  maker  ought,  we  have  no 
doubt,  in  order  to  come  up  to  the  proper  standard,  to  have  the 
cunning  and  discernment  of  the  Arabian  dervise,  so  that  nothing 
could  escape  his  observation.  He  ought  to  be  able,  not  only  to  dis- 
cern "  the  signs  of  the  times,"  but  to  look  forward  far  into  the  future, 


POWER  OF  A  CONSTITUTIONAL  CONVENTION.  139 

lincl  prepare  a  way  for  the  coming  generations,  so  straight,  that  a 
wayfaring  man  though  a  fool  may  not  err  therein. 

To  avoid  this  charge  of  arrogating  superior  wisdom,  he  must,  it 
appears,  legislate  with  a  halter  around  his  neck,  and  be  prepared 
in  case  of  failure  to  be  arraigned  before  that  tribunal  of  posterity, 
where  no  excuses  are  tolerated  and  no  errors  are  condoned. 

The  impetuous  and  appalling  rush  with  which  the  human  intel- 
lect has  moved  forward  in  the  last  fifty  years  in  the  career  of  truth 
and  liberty,  and  in  the  development  of  the  physical  resources  of  the 
country,  has  been  such  that  leaders  of  public  opinion  have,  it  appears, 
become  impatient,  and  cry  faster  and  faster,  even  though  the  world 
should  be  endangered  by  the  increased  velocity.  A  constitution 
should  not,  we  submit,  be  made  a  foot-ball  of,  or  be  degraded  to  that 
of  an  ordinary  statute,  which  may  be  enacted  to-day  and  repealed 
to-morrow. 


CHAPTEE  XXVII. 
The    Power    and  Scope  of  a  Constitutional  Convention. 

"/CONSTITUTIONS  are  in  politics  what  paper  money  is  in  com- 
V_y  merce.  They  afford  great  facilities  and  conveniences.  But 
we  must  not  attribute  to  them  that  value  which  really  belongs  to 
what  they  represent.  They  are  not  power,  but  symbols  of  power, 
and  will,  in  an  emergency,  prove  altogether  useless,  unless  the 
power  for  which  they  stand  be  forthcoming." 

The  real  power  by  which  the  community  is  governed,  is  made 
up  of  all  the  means  which  all  its  members  possess  of  giving  pleasure 
or  pain  to  each  other. 

The  word  "  Constitution,"  as  employed  in  modern  times,  means 
a  system  of  government  in  which  the  people  have  some  share  in 
making  the  laws — and  a  constitutional  convention,  in  American 
political  grammar,  means  that  special  agency  which  the  people 
select  to  transact  the  business  of  fundamental  legislation,  and  to 
draw  up  for  them,  and  on  their  behalf,  their  organic  laws. 

This  agency  is  something  akin  to  that  of  the  school  of  the  philoso- 
phers or  amphictyonic  council  where  only  sovereigns  are  delegates, 


140  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

and  where  not  only  the  fundamentals  of  human  society  are  considered, 
but  where  the  formation  and  arrangement  of  all  the  functions  and 
powers  of  government  are  defined,  marked  out  and  limited.  In 
its  true  sense  a  constitutional  convention  sustains  a  close  and  inti- 
mate official  relation  to  the  State,  and  is  charged  with  definite 
and  not  discretionary,  indeterminate  or  unlimited  functions.  "It 
always  acts  under  a  commission  fora  purpose  ascertained  and  limited 
by  law  or  custom.  Its  principal  feature  as  contradistinguished  from 
the  revolutionary  convention,  is  that  at  every  step  and  movement  of 
its  existence,  it  is  subaltern — it  is  evoked  by  the  side  and  at  the  call 
of  a  government  pre-existing  and  intended  to  survive  it  for  the 
purpose  of  administering  to  its  special  needs.  It  never  supplants 
the  existing  organization  and  never  governs."  And  here  we  will 
remark  that,  although  this  agency  is  as  well  known  in  the  United 
States  as  almost  any  other  institution  connected  with  the  govern- 
ment, yet  there  was  scarcely  ever  a  constitutional  convention  con- 
vened, but  what  its  powers  and  prerogatives  were  sought  to  be 
amplified  and  magnified  in  the  strangest  manner,  and  the  claim  put 
forth  that  whatever  it  does  is  done  by  the  people  "in  their 
primary  and  sovereign  capacity,"  and  that  it  is  clothed  with  an 
omnipotence  so  transcendent  and  far-reaching  that  nothing  can  con- 
trol it.  This  claim  was  put  forth  in  a  most  marked  manner  in 
Pennsylvania  at  an  early  day,  in  Massachusetts  in  1852,  was 
advocated  in  this  State  in  1862,  and  in  1869-70,  and  was  the  pre- 
vailing doctrine  in  most,  if  not  all,  of  the  Southern  States,  up  to  the 
time  of  the  war  of  secession;  and  acting  upon  this  idea  and  this 
theory,  constitutional  conventions  were  made  use  of  as  among  the 
most  efficient  organizations  ever  devised  to  bring  about  secession, 
because  upon  a  simple  vote  of  the  majority  secession  could  be 
carried,  and  was  carried.  To  effect  it  there  was  needed  but  a  vote 
of  a  few  conspirators,  sitting  as  a  constitutional  convention,  pre- 
tending to  utter  the  voice  of  the  people  and  refusing  to  submit 
their  ordinances  to  the  test  of  a  popular  vote,  under  the  false  plea 
that  neither  the  theory  of  the  convention  system  nor  the  practice 
of  the  fathers  made  such  a  submission  necessary. 

With  the  close  of  the  war  the  extreme  notions  of  State  sover- 
eignty, and  the  powers  inherent  in  constitutional  conventions  have, 
we  trust,  passed  away,  and  we  would  not  have  referred  to  it  here 
if  the  same  theories  had  not  been  put  forward  and  adhered  to  in  the 
recent  constitutional  convention  held  in  the  State  of  Mississippi, 


1>OWEB  OF  A  CONSTITUTIONAL   CONVENTION.  141 

and  which  convention  adopted  a  constitution  that  it  had  franitd 
without  submitting  it  to  a  vote  of  the  people. 

Theoretically,  it  seems  to  he  a  very  simple  matter  to  establish  a 
perfect  government;  but  practically,  it  is  not  so  simple.  Selfishness, 
greed,  ignorance  and  passion  are  found  to  be  constantly  disturbing 
forces,  and  what  is  simple  in  theory  is  difficult  in  practice.  Fortu- 
nately the  governing  genius  of  the  people  is  equal  to  almost  any 
emergency,  and  whenever  a  tendency  to  recklessness  and  extrava- 
gance lias  shown  itself,  the  people  have  stepped  forward  and  either 
checked  it  or  put  an  end  to  it. 

The  practical  statesman  takes  cognizance  of  fixed  facts,  and  is  on 
his  guard  against  hypocrisy,  ignorance,  humbugs,  incapacity,  dis- 
honesty, corruption,  frauds  and  defalcations,  and  no  constitution 
which  opens  wide  the  door  for  such  practices  either  on  the  part  of 
Legislatures,  city  councils,  county  commissioners  or  school  boards, 
ought  to  be  upheld  or  tolerated.  Constitutions  are  in  these  modern 
times  made  by  the  people,  and  if  they  select  a  few  of  their  fellow- 
men  to  draw  them  up  for  them  and  propose  them,  then  their 
responsibility  ends;  it  is  the  people  who  adopt  them.  The  aggre- 
gate will  of  the  people  is  usually  better  than  the  average  intelli- 
gence of  the  individuals  composing  the  people,  because  they  accept 
the  judgment  of  men  wiser  than  themselves. 

Bad  men  may  deceive,  mistakes  may  be  made,  but  the  evil  will 
be  temporary  and  will  be  reformed  in  obedience  to  the  right  feeling 
of  the  greater  numbers  of  the  people.  We  do  not  worship  the 
Constitution  as  a  fetish  or  cling  to  it  like  the  Twelve  Tables. 
We  do  not  look  upon  conventions  as  an  earthly  providence  and 
we  do  not  think  that  a  constitution  should  be  looked  upon  as  a 
sceptre  over  a  free  people  in  the  hands  of  dead  men.  The  true 
office  of  a  constitution  is  to  determine  the  order  but  not  the  course 
and  destination  of  the  people.  "It  is  not  providence  nor  destiny. 
The  years  and  what  they  bring  are  withdrawn  from  the  gaze  of 
conventions  as  well  as  of  men.  They  have  no  more  a  horoscope  to 
forecast  the  future  in  the  lives  of  nations  than  of  individuals,  nor 
can  they  outmaster  time,  nor  wrest  the  secret  from  the  years. 
The  Constitution  is  to  provide  that  the  people  shall  stand  together 
and  march  together,  but  their  line  of  march  is  hidden  from  it.  The 
nation  is  formed  in  the  changing  conditions  of  history.  It  must 
pass  through  conflicts  which  the  prescience  of  no  assembly  can  antic- 
ipate  and  they  will  not  regulate  their  coming  by  the  action  of  any 
convention,  nor  conform  to  its  project,  nor  abide  in  its  provision. 


142  CONSTITUTIONAL   filSTORY  6P  ILLINOIS. 

The  aim  of  the  Constitution  is  to  leave  each  generation  free  to  do 
its  own  work,  to  which  it  is  called,  but  in  the  continuity  of  the  nation 
and  in  its  normal  process,  and  therein  it  becomes  the  assertion  of 
the  unity  of  law  with  the  realization  of  the  freedom  of  the  nation 
in  its  being  in  history." 

This  is,  indeed,  the  teaching  of  true  philosophy,  but,  like  all 
general  statements,  is  subject  to  certain  limitations.  It  does  not 
contain  all  the  truth,  for  there  should  be  some  stability  in  our  Con- 
stitutions or  else  we  will  be  constantly  engaged  in  the  process  of 
experiment  and  change,  which  all  students  of  political  science  and 
the  wisest  statesmen  regard  as  public  calamities  akin  to  revolutions. 
The  Constitution  which  provides  for  its  own  amendment  furnishes 
the  most  ample  means  for  permanence  and  progress  and  for  setting 
aside  the  inconsistent  and  incongruous,  the  vague  and  the  incom- 
plete. 

We  see  no  sense  whatever  in  calling  upon  the  people  at  the 
present  time  to  assemble  and  rehearse  anew  the  fundamentals  of 
government,  and  we  do  not  believe  that  the  people  are  so  dissatis- 
fied with  the  workings  of  the  Constitution  as  to  demand  any  radical 
revision  anywhere. 

Constitutional  conventions,  in  our  American  political  grammar 
and  in  our  American  system  of  government,  belong,  as  we  have 
said,  to  the  genus  Legislature.  The  consequence  is  that  they  often 
contain  vast  aggregates  of  ignorance  and  inexperience,  like  ordinary 
Legislatures,  and  indulge  in  immeasurable  platitudes  and  endless 
debates  over  matters  long  since  thoroughly  settled  in  political 
science  and  in  the  science  of  government. 

No  constitutional  convention  should,  in  my  judgment,  ever  be 
called  without  selecting  in  advance  a  committee  of  the  wisest  men 
in  the  State  to  carefully  consider  the  defects  in  the  existing  Consti- 
tution which  it  is  proposed  to  amend,  and  to  point  out  the  remedies, 
and  provide  in  advance  the  changes  to  be  made  and  the  reforms  to 
be  inaugurated;  not  that  what  may  be  proposed  should  bind  any- 
body or  limit  the  sphere  of  the  investigations  or  action  of  those 
called  upon  to  act,  but  that  the  convention  may  have  something  to  act 
upon  at  once,  and  not  waste  valuable  time  by  discussing  impracticable 
and  incoherent  theories  of  government.  If  government  is  a 
science,  and  if  written  constitutions  are  necessary  to  the  well-being 
of  society,  then  it  is  due  to  the  people  that  they  should  approximate 
as  near  perfection  as  the  skill  of  man  can  make  them  and  the  lot 
of  humanity  will  allow. 


CHAPTER  XXVIli. 
Legislative  Provisions  in  Modern  Constitutions.' 

THE  constitutions  which  have  been  framed  by  the  various  States 
in  modern  times  differ  very  materially  from  those  that  we 
meet  with  in  the  early  days  of  the  republic.  The  earlier  constitu- 
tions wore  confined  to  outlining  the  general  structure  of  the  govern- 
ment and  did  not  undertake  to  enact  laws  and  prescribe  the  condi- 
tions under  which  laws  might  be  made  and  executed.  Now  you 
can  find  in  them  whole  statutes,  from  those  regulating  freight  bills, 
warehouse  charges  and  homestead  exemptions,  down  to  those  for- 
bidding the  sale  of  intoxicating  liquors  and  the  practice  of  law. 

Some  of  our  modern  constitutions  are  getting  to  be  little  bet- 
ter than  caricatures  and  are  overloaded  with  legislation,  the  most 
notable  instances  of  which  are  California  and  Mississippi.  Califor- 
nia especially  is  but  very  little  better  than  a  volume  of  State 
statutes  and  Mississippi  falls  but  little  behind  it. 

It  will  compare  favorably  with  the  "  Svod  Zakonof  "  or  collec- 
tion of  Russian  laws  of  which  that  part  relating  to  the  police  alone 
contains  five  thousand  sections.  The  Constitution  of  the  United 
States  is  a  model  in  many  respects  for  all  States,  because  it  confines 
itself  to  a  clear  sketch  of  fundamentals  and  leaves  as  much  as  pos- 
sible to  be  developed  by  circumstances.  It  is  this  feature  of  it 
which  gives  it  flexibility  and  leaves  so  much  to  be  developed  by 
circumstances. 

There  is  considerable  legislation  to  be  found  in  the  Constitution 
of  1870;  but  if  any  one  will  take  the  pains  to  examine  the  list  of 
committees  who  had  in  charge  the  various  subjects  in  that  conven- 
tion, they  will  find  that  it  was  composed  of  men  of  very  great 
experience  in  our  State  affairs,  and  they  declared  it  was  absolutely 
necessary  to  provide  the  restraints  upon  the  General  Assembly  in 
order  to  bring  about  any  of  the  reforms  that  the  people  demanded, 
and  they  were  inserted  for  that  purpose. 

Many  of  the  things  which  are  there  enumerated  would,  ordinarily, 
we  admit,  be  absolutely  within  the  jurisdiction  of  the  Legislature, 
but  what  people  ever  suffered  as  we  have  done  from  special  legisla- 
tion and  special  charters  and  the  enactment  of  private  laws  and  the 
grant  to  individuals  of  special  privileges? 

(1-13) 


144  CONSTITUTIONAL    HISTORY  OP  ILLINOIS. 

Our  legis'atures  had  also  from  time  to  time  been  disgraced  by 
unseemly  struggles  between  contending  political  parties  over  the 
organization  of  the  General  Assembly.  This  we  provided  for.  The 
forms  to  be  pursued  in  the  style  of  laws,  methods  of  revision  and 
enactment  of  the  same,  the  appropriation  and  expenditure  of  public 
moneys,  prohibiting  special  legislation  upon  a  number  of  subjects 
which  are  particularly  enumerated  and  set  forth. 

This  legislative  feature  extends  to  counties  and  the  removal  of 
county  seats,  homestead  exemptions,  the  organization  of  banks  and 
corporations  and  of  -railroads  and  warehouses,  which  in  these  modern 
times  almost  dominate  the  State  itself,  and  which  we  deemed  it 
necessary  for  the  State  tb  absolutely  govern  and  control. 

Men  say  in  answer  to  all  these  things  that  those  who  framed  a 
constitution  on  such  a  theory,  acted  as  if  they  considered  the  people 
utterly  incapable  of  self-government,  and  as  if  they  thought  that 
they  embodied  "  all  of  the  wisdom  of  the  present  and  of  future  gen- 
erations." 

Such  remarks  betray  a  most  superficial  knowledge  of  the  condi- 
tion of  society  and  that  they  have  bestowed  but  very  little  thought 
upon  the  subject;  for,  as  Daniel  Webster  once  said:  "  It  is  a  funda 
mental  rule  in  the  structure  of  human  society,  that  mankind  must 
not  only  limit  the  powers  of  their  rulers,  but  must  limit  them- 
selves." No  body  of  any  sense  undertakes  to  bind  posterity  to  any- 
thing; but  human  governments  do  have  a  continuity,  and  in  order 
that  they  may  not  degenerate  into  chaos,  or  society  resolve  itself 
into  its  original  elements,  rules  must  be  provided  for  cohesion  and 
continuance,  although  mankind  may  rise  up  to-morrow  and  over- 
throw the  same.  No  government  that  was  ever  yet  formed  pro- 
vided for  its  own  dissolution. 


OHAPTEK  XXIX. 

An   Examination   of  Some  of  the  Objections  Which  Are 
Urged  against  the  Present  Constitution. 

~T~  ET  us  now  briefly  examine  a  little  more  in  detail,  some  of  the 
-•— ^  objections  which  have  been  urged  against  the  Constitution, 
and  see  if  they  are  sound  and  reliable  and  based  upon  proper  found- 
ations. "We  enter  a  general  denial  to  each  and  every  one  of  them, 
and  call  for  the  proofs. 

We  plead  the  general  issue.  Those  who  make  charges  hold  the 
affirmative  and  should  prove  them.  And  when  anybody  asserts 
that  any  given  thing  can  not  be  accomplished  under  the  provisions 
of  a  constitution,  it  is  his  duty  to  show  wherein  and  why  it  can  not 
be  done,  because,  as  we  have  already  said,  in  the  absence  of  a 
limitation  on  the  Legislature,  or  a  prohibition  against  doing  any 
given  thing,  the  Legislature,  or  as  we  term  it  in  our  Constitution, 
"the  General  Assembly,"  is  as  omnipotent  as  that  of  the  British 
Parliament.  The  narrow  constructionists  will  receive  no  encour- 
agement from  the  example  of  Chief  Justice  Marshall,  who 
expounded  the  Constitution  with  the  wisdom  of  the  sage  and  (he 
prescience  of  the  seer.  In  the  case  of  New  York  v.  Miln,  11  Peters, 
139,  the  Supreme  Court  of  the  United  States  say  :  "  A  State  has 
the  same  undeniable  and  unlimited  jurisdiction  over  all  persons  and 
things  within  its  territorial  limits  as  any  foreign  nation,  where  that 
jurisdiction  is  not  surrendered  or  restrained  by  the  Constitution  of 
the  United  States;  that  by  virtue  of  this,  it  is  not  only  the  right, 
but  the  bounden  and  solemn  duty  of  a  State  to  advance  the  safety, 
happiness  and  prosperity  of  its  people,  and  to  provide  for  its  general 
welfare  by  any  and  every  act  of  legis'ation  which  it  may  deem  to 
be  conducive  to  these  ends,  when  the  power  over  the  particular 
subject,  or  the  manner  of  its  exercise,  is  not  surrendered  or 
restrained  by  the  Constitution  and  laws  of  the  United  States." 

The  rule,  in  regard  to  the  construction  of  the  provisions  of  a 
constitution,  is  very  often  violated  both  by  courts  and  lawyers;  but 
Chief  Justice  Marshall  declared  long  years  ago  that  the  rule  was  to 
construe  all  such  instruments  liberally,  and  as  common  men  would 
adjudge  the  meaning  of  words  used  by  them  in  expressing  tliein- 
9  (145) 


146  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

selves  in  the  ordinary  transactions  and  business  of  life — not  technic- 
ally, and  in  such  a  manner  as  to  defeat  the  intention  of  the  fram- 
ers,  which  was  to  be  gathered  from  the  instrument  itself,  and  from 
the  facts  and  circumstances  surrounding  them  at  the  time. 

When  there  is  no  ambiguity  in  the  words  themselves  and  the 
intention  is  plain,  then  there  is  no  room  for  construction,  for  there 
is  nothing  to  construe. 

A  constitution  has  no  inherent  power  and  no  abstract  quality 
to  deliver  any  people  from  all  of  their  distresses.  It  is  not  for  the 
individual  nor  for  the  nation  to  be  saved  by  any  system,  however 
complex,  nor  any  dogma,  however  subtle.  The  Constitution  may 
become  itself  only  the  mark  which  hides  from  an  age  its  degeneracy 
or  as  the  mausoleum  which  conceals  its  decay.  But  let  us  treat  this 
subject  fairly.  Let  us  commence  with  the  preamble  and  trace  its 
outlines  and  provisions,  article  by  article  and  section  by  section 
till  the  end,  and  see  wherein  it  falls  short  of  providing  a  system 
adequate  to  all  the  wants  of  the  people.  It  was  not  drafted  by  one 
man  and  it  was  not  designed  to  provide  for  everything,  and  in  that 
respect  differs  from  a  statute,  completely  and  entirely.  That 
inconsistencies  may  sometimes  be  found  and  incongruities  maybe 
noticed,  does  not  militate  against  the  instrument  as  a  whole,  if  there 
still  exists  sufficient  to  furnish  adequate  remedies  for  wrongs  and 
abuses. 

The  true  scope  of  a  constitution  is  that  of  a  framework  of 
government  and  not  a  complete  and  completed  structure.  All  that 
is  ever  required,  and  all  that  ever  should  be  presented,  is  a  proper 
sketch,  skeleton  and  framework  and  not  a  rounded  whole.  The 
fact  that  the  Supreme  Court  of  the  State  leads  a  nomadic  existence 
is  due  to  the  Legislature;  for  the  4th  section  of  the  6th  article  of  the 
Constitution  expressly  provides  that  "judicial  decisions  may  be 
altered  or  diminished  in  number  and  the  times  and  places  of  hold- 
ing said  court  may  be  changed  by  law." 

Here  the  remedy  is  with  the  Legislature,  and  if  the  change  is 
not  made  from  three  places  to  one,  it  is  wholly  the  fault  of  the 
General  Assembly.  There  was  a  time  in  the  history  of  this  State 
when  "court  days"  and  "cattle  fairs"  were  great  attractions,  and 
that  custom  still  prevails  to  a  considerable  extent,  we  believe,  in 
Kentucky;  but  if  this  ever  did  have  any  application  to  the  Supreme 
Court  where  the  great  amount  of  work  is  performed  in  retirement 
and  not  in  "the  show  ring,"  the  sooner  the  custom  is  dropped  the 


OBJECTIONS  AGAINST  THE  PRESENT  CONSTITUTION.      147 

better.  The  Supreme  Court  ought  to  be  held  like  that  of  the  old 
Court  of  Common  Pleas  in  England,  " in  cerium  loco"  in  one  place 
and  that  place  the  capital.  Originally,  it  does  appear  that  the  cider 
men  and  petty  chapmen  did  receive  great  gains  from  the  annual 
recurrence  of  court  days,  and  the  advent  of  the  great  dignitaries 
that  accompanied  the  judges  as  in  the  days  of  Aula  Regis'  but  that 
time  is  past,  and  "boarding  around"  should  cease.  It  is  simply 
disgraceful  that  this  thing  should  longer  be  tolerated,  and  the  sooner 
the  ancient  practice  of  going  in  eyre  should  cease,  the  better.  The 
Supreme  Court  ought  to  hold  its  sessions  at  the  capital  and 
nowhere  else. 

That  there  should  be  any  inconvenience  arising  from  the  ease, 
and  facilities  afforded  for  obtaining  charters  of  incorporation  under 
our  laws,  is  a  matter  wholly  within  legislative  control ;  for,  instead 
of  inaugurating  the  system  of  dropping  a  dime  into  the  slot,  and 
receiving  a  charter  of  incorporation  for  the  same,  the  Legislature 
have  only  to  adopt  a  fee  or  charge  for  the  same  sufficient  in  amount 
to  defray  the  expenses  of  employing  a  corps  of  clerks  to  register 
and  record  and  issue  the  same,  and  this  abuse  would  stop.  In  other 
words,  no  corporate  charter  should  be  issued  without  paying  an  ade- 
quate amount  into  the  public  treasury,  sufficient  to  cover  every 
expense,  which  should  be,  on  the  average,  twice  what  it  is  to-day. 
Then  there  ought  to  be  appointed  by  law  a  public  examiner,  such 
as  exists  in  Minnesota,  to  examine  at  any  time  into  the  soundnecs  of 
corporations  holding  franchises  from  the  State  and  into  all  public 
accounts  of  all  public  officers. 

The  amount  of  money  which  could  be  realized  from  fees  and 
charges  for  the  granting  of  corporate  charters  would  go  far  to 
relieve  the  taxpayers  from  their  burdens,  and  would  serve  to  curtail 
the  number  of  the  same.  Our  State  is  swarming  with  corporations 
of  all  sorts,  characters  and  kinds,  which  seem  to  be  almost  beyond  con- 
trol. But  it  is  the  fault  of  the  Legislature  that  it  is  so,  and  not  the 
Constitution  of  this  State.  In  Pennsylvania,  and  in  many  other 
States,  large  sums  of  money  have  been  and  are  realized  from  the 
granting  of  corporate  franchises  under  their  laws;  but  their  charges 
cover  something  beyond  the  cost  of  the  paper  and  attaching  the 
State  seal  to  them. 


CHAPTEE  XXX. 

The  Administration  of  the  Criminal  Law  in  the  State  of 

Illinois. 

ONE  of  the  most  necessary  and  august  functions  of  a  govern- 
ment is  to  administer  justice  and  it  is  impossible  to  diminish 
the  authority  of  justice  without  taking  away  from  the  government 
a  portion  of  its  strength.  The  judicial  system  which  has  been  pro- 
vided by  the  Constitution  of  this  State  may  be  defective  and  the 
administration  of  the  law  unsatisfactory,  but  we  submit  that  the 
reason  for  this  must  be  looked  for  somewhere  else  than  in  the  Con- 
stitution or  the  laws  themselves.  Nisi  prius  judges  have  in  the 
State  of  Illinois  been,  by  various  judicial  decisions,  dicta  and  prac- 
tices, deprived  of  almost  all  the  powers  that  they  ever  possessed  by 
the  common  law,  until  to-day  their  position  in  the  trial  of  a  case  is 
but  very  little  better  than  that  of  a  moderator  in  an  ordinary 
debate.  They  have  become  but  little  better  than  a  nonentity,  and 
the  fault  is  not  in  the  Constitution,  but  rests  somewhere  else,  and 
entirely  outside  that  instrument.  Trace  the  history  of  a  law  suit 
in  this  State,  and  especially  that  of  a  criminal  case,  and  see  how  and 
in  what  manner  it  is  dealt  with  by  the  court  of  last  resort. 

After  a  criminal  is  tried  his  case  is  removed  to  the  Supreme 
Court.  For  what  purpose  ?  To  determine  the  guilt  or  innocence 
of  the  prisoner  at  the  bar?  No.  The  jury  that  tried  him  has  already 
passed  upon  that.  For  error  in  law  ?  No,  that  can  not  be,  for  by 
the  statute  of  the  State  of  Illinois,  it  is  provided  that  the  jury  are 
the  judges  of  the  law  and  the  facts.  What  then  ?  Well,  it  is  to 
determine  whether  the  judge  that  tried  him  and  the  prosecuting 
officer  that  prosecuted  him  are  guilty,  whether  they  pursued  the 
right  methods  to  ascertain  the  facts.  Was  the  presentation  of  the 
case  fair,  was  there  too  much  severity  exhibited  by  the  State's 
Attorney  in  his  cross-examination  of  witnesses,  was  the  jury  the 
right  kind  of  a  jury  for  the  prisoner  ?  Were  counsel  for  the 
defense  permitted  to  examine  them  at  sufficient  length  to  ascertain 
whether  they  had  any  bias  or  had  right  ideas  upon  the  subject  of 

(148) 


ADMINISTRATION  OF  THE    CRIMINAL  LAW.  149 

"  reasonable  doubt,"  would  they  convict  upon  "  doubtful  or  unsatis- 
factory evidence,"  would  they  "  guess  a  man  into  the  peniten- 
tiary?" Were  these  questions  answered  fully  and  satisfactorily? 
"What  kind  of  a  closing  speech  did  the  State's  Attorney  make — was 
it  one  that  aroused  the  feelings  of  the  jury  to  the  highest  pitch  or 
did  he  proceed  on  a  low  key  ? 

How  many  times  was  the  State's  Attorney  interrupted  in  his 
closing  speech  by  the  counsel  for  the  prisoner  and  why  was  it  that 
the  court  did  not  rebuke  him  in  language  befitting  the  occasion? 

How  did  the  judge  behave?  Did  he  make  any  remarks  during 
the  course  of  the  trial  which  had  the  effect  to  influence  the  jury? 
Was  his  bearing  such  as  became  the  time  and  the  occasion  ?  Were 
his  rulings  fair,  and  were  they  according  to  law  "  as  laid  down  by 
the  jury  " — or  by  the  sages  of  the  law  ?  Did  he  place  the  right 
mark  on  the  instructions  which  the  counsel  engaged  in  the  case  so 
kindly  and  courteously  handed  him  just  a  moment  before  the  case 
closed?  Did  he  make  a  mistake  when  he  wrote  "given"  on  this 
instruction  and  "refused"  on  that?  That  is  the  important  question. 
It  is  true  that  a  prisoner  at  the  bar  has  no  right  to  resort  to  legerde- 
main in  order  to  clear  himself,  but  it  amounts  to  exactly  that  and 
nothing  more.  Technical  rules  may  be  useful  to  guide  the  ignorant 
and  unsophisticated  through  the  mazes  of  the  criminal  law  but 
they  should  never  be  carried  so  far  as  to  produce  results  plainly 
detrimental  to  public  repose  or  to  a  sound  administration  of  the 
judicial  system. 

A  constitutional  convention  may  be  required  to  confer  upon 
judges  the  power  to  superintend  the  impaneling  of  juries  and  to 
control  the  trial  of  persons  charged  with  heinous  offenses,  for 
almost  every  step  that  is  taken  seems  to  tend  to  strip  them  of  all 
power  in  this  matter.  The  time  has  come,  we  think,  in  the  history 
of  this  country,  when  some  practical  rule  should  be  adopted  in 
regard  to  the  competency  of  jurors,  and  that  rule  is  the  one  that 
was  provided  for  in  the  first  Constitution  of  Massachusetts,  as  early 
as  1783,  to  wit:  A  man  who  commits  a  crime  shall  be  "tried  by 
a  jury  as  fair  and  impartial  as  the  lot  of  humanity  will  permit,"  and 
not  by  saints  and  angels.  To  require  that  jurors  shall  come  to  the 
investigation  of  criminal  charges  with  minds  entirely  unimpressed 
by  what  they  had  heard  in  regard  to  them,  or  entirely  without  infor- 
mation concerning  them,  would  be  in  many  cases  to  exclude  every 
man  from  the  panel  who  was  tit  to  sit  as  a  juror.  With  the  prets- 


150  CONSTITUTIONAL   HISTOEY  OF  ILLINOIS. 

ent  means  of  information  the  facts  or  rumors  concerning  an  atro- 
cious crime  are  in  a  very  few  hours  or  days,  at  farthest,  spread 
before  every  man  of  reading  and  intelligence  within  the  district 
from  which  jurors  are  to  be  drawn,  and  over  the  whole  country,  if 
the  atrocity  be  especially  great.  The  greater  the  enormity  of  the 
crime  the  more  complete  is  the  protection  afforded  a  villain  from 
punishment  by  a  jury.  The  opinion  of  Judge  Lockwood  in  the 
case  of  McKinney  v.  The  People,  2  Gil.  548,  may  be  consulted 
always  with  profit. 

To  plead  under  the  ancient  arches  of  "Westminister  Hall,  in  the 
name  of  the  English  nobles,  for  great  nations  and  kings  separated 
from  him  by  half  the  world,  was  to  Burke  the  height  of  human 
glory.  There  are  those  who  seern  to  think  that  if  they  can  appear 
in  behalf  of  some  ideal  monster,  that  they  are  justified  in  resorting 
to  every  species  of  trickery  and  chicanery,  to  overawe  witnesses, 
browbeat  courts,  hoodwink  juries,  and  if  they  can  succeed  in 
obtaining  a  verdict  in  their  favor,  that  that  is  the  acme  of  fame  and 
human  greatness/  If  they  fail,  they  call  to  their  aid  the  court  of 
last  resort  and  very  frequently  they  do  not  call  in  vain. 

The  whole  body  of  the  criminal  law  is  at  the  present  time  over- 
loaded with  technicalities,  subtleties,  refinements,  impracticable  and 
in  many  instances  absolutely  nonsensical  rules  and  rulings,  which  have 
no  other  tendency  than  to  protect  crime  and  criminals,  and  thwart 
public  justice. 

A  great  criminal  backed  by  money  can  almost  defy  the  public 
and  the  people,  not  by  the  use  of  it  in  corrupting  courts,  but  by 
resorting  to  changes  of  venue,  bills  of  particulars,  excepting  to 
everything  under  heavens,  done  or  said  in  court,  and  out  of  court, 
and  then  calling  upon  the  court  of  last  resort  for  their  aid  and 
assistance  in  construing  everything  done  and  said  against  the  court, 
prosecuting  officer,  judge  and  jury,  clerks  and  bailiffs,  and  they  are 
sure  to  obtain  errors  enough  to  reverse  the  verdict  every  time. 
Substantial  justice,  which  is  really  the  limit  of  all  earthly  tribunals, 
is  wholly  ignored,  and  absolute  perfection  required  or  else  a  crimi- 
nal trial  is  erroneous.  Common  sense  seems  to  be  about  the  last 
thing  made  use  of  in  reviewing  criminal  trials,  and  the  guilt  or 
innocence  of  the  accused  wholly  ignored  or  forgotten. 

By  the  law  as  it  exists  to-day  in  the  State  of  Illinois,  a  person 
charged  with  the  commission  of  a  crime  can,  by  resorting  to  changes 
of  venue,  motions  for  continuances  and  other  tactics  known  to  the 


ADMINISTRATION    OF    THE  CRIMINAL  LAW.  151 

law,  select  his  judge,  fix  the  time  and  place  for  his  trial  and  select 
his  own  jury,  if  it  takes  months  to  do  it.  Now,  this  may  seem 
astonishing  to  a  stranger,  but  if  it  is  not  absolutely  true  in  all  cases 
it  is  nearly  so. 

A  nisi prius  judge  has  no  discretion  left  in  him  according  to  its 
true  and  legal  meaning  as  known  and  understood  by  the  common 
law,  for  everything  is  subject  to  review  from  good  morning  to  good 
night. 

If  we  have  the  common  law  in  this  State  will  some  one  be  kind 
enough  to  inform  me  what  it  is,  and  if  judges  have  been  abridged 
in  the  exercise  of  their  powers,  by  whom  it  was  done  and  by  what 
means  it  was  accomplished?  Able  jurists  have,  in  Maryland  and 
Pennsylvania,  investigated  this  subject  and  determined  to  what 
extent  the  common  law  exists  there.  But  in  this  State  that  has  not 
yet  been  determined  except  our  Supreme  Court  have  decided  that 
all  Circuit  Courts  have  the  same  powers  and  jurisdiction  as  the 
King's  Bench,  and  that  the  common  law  exists  as  it  did  in  Virginia 
prior  to  1784.  In  addition  to  all  these  things,  the  statute  adopting 
the  common  law  is  still  in  force  and  has  never  been  repealed.  Does 
it  require  a  constitutional  convention  to  enforce  its  observance? 

is  there  anything  in  the  genius  of  our  institutions  to  require 
absolute  perfection  arid  no  errors? 

A  prisoner  charged  with  the  commission  of  a  crime  is  entitled 
to  a  fair  and  impartial  trial — as  fair  and  impartial  as  "  the  lot  of 
humanity  will  permit  "  but  nothing  further — and  the  great  question 
should  be,  is  he  guilty  or  innocent  and  not  somebody  else. 

There  was  a  time  in  England  when  the  penalty  attached  to 
almost  every  crime  was  death,  and  when  every  species  of  technical- 
ity and  sublety  was  resorted  to  to  save  a  criminal,  but  in  this  more 
liberal  and  enlightened  age,  when  the  administration  of  the  criminal 
law  has  been  ameliorated  by  just  and  merciful  laws,  and  milder 
punishments  are  awarded  for  almost  every  offense,  a  liberal  rule  has 
obtained,  and  the  last  traces  of  lawyers'  superstitions  have  been  swept 
away  and  the  fanciful  scruples  of  the  sixteenth  and  seventeenth 
centuries  are  no  longer  listened  to. 

Modern  legislation  ought  to  sweep  away  every  vestige  of  those 
fantasies  and  arbitrary  rules  of  criminal  lawyers  which  now  hinder 
and  obstruct  the  administration  of  the  criminal  law,  and  go  back 
to  those  simple  principles  which  the  untutored  wisdom  of  our  fore- 
fathers never  thought  of  calling  in  question. 


152  CONSTITUTIONAL   HISTORY    OF   ILLINOIS. 

Finally :  There  are  many  and  various  conceptions  of  justice. 
The  most  reasonable  distinction  is  between  universal  and  particular 
justice.  The  first  is  when  every  duty  is  discharged  and  all  right 
done  to  others,  even  that  which  could  not  have  been  exacted  by 
force  or  by  the  vigor  of  the  law.  Particular  justice  is  when  we  do 
that  and  no  more,  which  may  be  strictly  demanded  of  us.  And 
this  is  again  divided  into  distributive  and  commutative.  Distribu- 
tive justice  pertains  to  the  public,  and  is  sometimes  known  as  public 
justice,  while  commutative  is  founded  upon  reciprocal  bargains  and 
contracts,  but  partakes  largely  of  public  justice.  It  is  the  duty  of 
a  court  in  the  administration  of  the  law,  to  see  that  public  justice 
has  an  equal  chance  with  any  other  justice,  either  public  or  private. 

The  tendency  of  modern  ideas  seems  to  be  to  regard  the  public 
interests  as  of  but  very  little  consequence. 

"Impartiality,"  says  Bouvier,  "is  the  first  duty  of  a  judge.  He 
is  bound  to  declare  what  the  law  is,  and  not  to  make  it;  he  is  not 
an  arbitrator,  but  an  interpreter  of  the  law.  It  is  his  duty  to  be 
patient  in  the  investigation  of  the  case,  careful  in  considering  it,  and 
firm  in  his  judgment.  He  ought,  according  to  Cicero,  never  to  lose 
sight  that  he  is  a  man;  that  he  can  not  exceed  the  power  given  him 
by  his  commission;  that  not  only  power,  but  public  confidence,  has 
been  given  to  him,  and  that  he  .ought  always  seriously  to  attend,  not 
to  his  wishes,  but  to  the  requisitions  of  law  and  justice." 

It  is  the  prerogative  of  the  court,  by  the  common  law,  to  abso- 
lutely determine  whether  a  juror  is  biased  or  prejudiced  for  or 
against  the  prisoner  at  the  bar  or  State,  and  his  decision  is  final. 

After  a  juror  states  that  he  is  not  sensible  of  any  bias  or  preju- 
dice in  the  case,  it  ought  not  to  be  erroneous  to  refuse  a  further 
examination  of  the  juror,  and  it  is  said  the  mind  of  the  court,  and 
not  of  the  counsel,  must  be  satisfied  that  the  challenged  juror  is 
free  from  bias  and  prejudice. 

;:  "We  can  never  secure  from  general  society,  as  it  is  now  consti- 
tuted, a  body  of  men  entirely  free  from  partiality,  impression  or  bias; 
at  best,  we  can  only  get  as  near  to  this  as  we  can  by  discrimination 
and  scrutiny.  The  day  is  fast  disappearing  when  men  are  required 
to  come  into  a  jury  box  entirely  and  absolutely  free  from  any 
impression  and  even  opinion,  as  to  matters  of  general  notoriety. 

We  are  now  coming  to  the  recognition  of  a  fact  that  must  have 
been  long  ago  apparent — that  it  is  preposterous  to  expect  men 


StATE  AND  FEDEKAL  JUDGES.  153 

moving  in  general  society  as  it  is  to-day,  to  be  unimpressed  and 
uninformed  as  to  current  and  striking  events. 

We  must  either  recede  and  go  back  to  the  practice  of  an  age 
when  ignorance  of  passing  events  constituted  a  characteristic  of  the 
times,  and  exclude  evory  juror  who  has  formed  an  opinion,  even 
the  slightest,  or  we  must  stand  abreast  with  the  present  age,  when 
every  remarkable  event  of  to-day  is  known  all  over  the  country  to- 
morrow, and  exclude  those  whose  opinions  are  so  fixed  as  to  be 
prejudgments  or  have  been  founded  upon  the  known  evidence  in 
the  cause. 

It  is  needless  to  say  the  world  moves  and  carries  us  with  it,  and 
if  we  lag  behind  we  must  commit  the  trial  of  the  most  important 
causes  in  life  to  those  so  ignorant  that  their  dark  minds  have 
never  been  smitten  with  the  rays  of  intelligence. 

We  inherited  the  common  law,  and  adopted  it  by  statute  in 
this  State  at  a  very  early  period,  and  yet  in  the  trial  of  jury  cases, 
the  true  position  of  the  court  is  lost  sight  of,  and  instead  of  being  a 
trial  by  judge  and  jury,  the  trial  is  regarded  as  a  trial  by  the  jury 
alone,  and  the  court  has  but  very  little  part  in  it. 


CHAPTEE  XXXI. 
State  and  Federal  Judges. 

IT  is  a  very  common  remark  among  lawyers  and  laymen  that  the 
United  States  courts  possess  many  advantages  over  those  of  the 
State  courts,  but  they  do  not  stop  to  consider  what  it  is  that  makes 
the  difference.  In  the  first  place  the  permanence  of  the  judicial 
office  has  one  advantage;  secondly,  the  limited  range  of  their  sub- 
jects, which  are  confined  to  the  Federal  jurisdiction,  following  day  by 
day,  week  by  week  and  year  by  year,  the  Supreme  Court  decis- 
ions; and  thirdly,  the  power  that  they  possess  and  which  they  exert 
in  trying  cases  and  summing  up  the  facts  to  the  jury.  These  are 
matters  of  great  importance. 

Chief  Justice  Kent  called  attention  to  some  of  these  points  as 
early  as  1826.  and  in  the  first  volume  of  his  Commentaries  speaks  of 
the  matter  in  this  wise  : 

"There  are,"  says  he,  "several  reasons  why  we  may  anticipate  the 


154  CONSTITUTIONAL    HISTORY    OF  ILLINOIS. 

still  increasing  influence  of  the  Federal  government,  and  the  con- 
tinual enlargement  of  the  national  system  of  law  in  magnitude  and 
value.  The  judiciary  of  the  United  States  has  an  advantage  over 
many  of  the  State  courts,  in  the  tenure  of  office  of  the  judges,  and 
the  liberal  and  stable  provision  for  their  support. 

"The  United  States  are,  by  these  means,  fairly  entitled  to  com- 
mand better  talents,  and  to  look  for  more  firmness  of  purpose 
greater  independence  of  action,  and  brighter  displays  of  learning- 
The  Federal  administration  of  justice  has  a  manifest  superiority  over 
that  of  the  individual  States,  in  consequence  of  the  uniformity  of 
its  decisions,  and  the  universality  of  their  application. 

"Every  State  court  will  naturally  be  disposed  to  borrow  light 
and  aid  from  the  national  courts,  rather  than  from  the  courts  of 
other  individual  States,  which  will  probably  never  be  so  generally 
respected  and  understood.  The  States  are  multiplying  so  fast,  and 
the  reports  of  their  judicial  decisions  are  becoming  so  numerous, 
that  few  lawyers  will  be  able  or  willing  to  master  all  the  intricacies 
and  anomalies  of  local  law,  existing  beyond  the  boundaries  of  their 
own  State.  Twenty-six  independent  State  courts  of  final  jurisdic- 
tion over  the  same  questions,  arising  upon  the  same  general  code 
of  common  and  of  equity  law,  must  necessarily  impair  the  symmetry 
of  that  code. 

"  The  danger  to  be  apprehended  is,  that  students  will  not  have 
the  courage  to  enter  the  complicated  labyrinth  of  so  many  systems, 
and  that  they  will,  of  course,  entirely  neglect  them,  and  be  con- 
tented with  a  knowledge  of  the  law  of  their  own  State  and  the  law 
of  the  United  States,  and  then  resort  for  further  assistance  to  the 
never-failing  fountains  of  European  wisdom. 

"But  though  the  national  judiciary  may  be  deemed  pre-eminent 
in  the  weight  of  its  influence,  the  authority  of  its  decisions,  and  in 
the  attraction  of  their  materials,  there  are  abundant  considerations 
to  cheer  and  animate  us  in  the  elevation  of  our  own  local  law.  The 
judicial  power  of  the  United  States  is  necessarily  limited  to  national 
objects.  The  vast  field  of  the  law  of  property,  the  very  extensive 
head  of  equity  jurisdiction,  and  the  principal  rights  and  duties 
which  flow  from  our  civil  and  domestic  relations,  fall  within  the 
control,  and  we  might  almost  say  the  exclusive  cognizance  of  the 
State  governments.  We  look  essentially  to  the  State  courts  for 
protection  to  all  these  momentous  interests.  They  touch,  in  their 
operation,  every  chord  of  human  sympathy,  and  control  our  best 


AND  FEDERAL  JUDGES.        155 

destinies.  It  is  their  province  to  reward  and  punish.  Their  bless- 
ings and  their  terrors  will  accompany  us  to  the  fireside,  and  'be  in 
constant  activity  before  the, public  eye.'  The  elementary  princi- 
ples of  the  common  law  are  the  same  in  every  State,  and  equally 
enlighten  and  invigorate  every  part  of  our  country.  Our  municipal 
codes  can  be  made  to  advance  with  equal  steps  with  that  of  the 
Nation,  in  discipline,  in  wisdom  and  in  lustre,  if  the  State  govern- 
ments (as  they  ought  in  all  honest  policy)  will  only  render  equal 
patronage  and  security  to  the  administration  of  justice.  The  true 
interests  and  the  permanent  freedom  of  this  country  require  that 
the  jurisprudence  of  the  individual  States  should  be  cultivated, 
cherished  and  exalted,  and  the  dignity  and  reputation  of  the  State 
authorities  sustained  with  becoming  pride.  In  their,  subordinate 
relation  to  the  United  States,  they  should  endeavor  to  discharge 
the  duty  which  they  owe  to  the  latter,  without  forgetting  the 
respect  which  they  owe  to  themselves.  In  the  appropriate  lan- 
guage of  Sir  William  Blackstone,  and  which  he  applied  to  the 
people  of  his  own  country,  they  should  be  '  loyal,  yet  free;  obedient 
and  yet  independent.' " 

By  the  organic  law  of  the  State  of  Illinois  the  tenure  of  office 
of  all  judges  is  of  short  duration,  and  all  are  elected  by  the  people. 

The  Supreme  Court  judges  are  elected  for  the  period  of  nine 
years,  the  Circuit  and  Superior  Court  judges  for  six  years,  and  all 
other  judges  for  four  years. 

In  New  York,  by  a  recent  amendment  to  their  Constitution,  all 
the  judges  of  courts  of  record,  like  those  of  the  circuit  judges  in 
this  State,  are  elected  for  fourteen  years. 

By  the  Constitution  of  Massachusetts,  which  was  adopted  in  1780, 
it  was  provided  as  follows: 

"It  is  essential  to  the  preservation  of  the  rights  of  every 
individual,  his  life,  liberty,  property  and  character,  that  there  bean 
impartial  interpretation  of  the  laws  and  administration  of  justice. 
It  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free,  impartial 
and  independent  as  the  lot  of  humanity  will  admit. 

"  It  is,  therefore,  not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people,  and  of  every  citizen,  that  the  judges  of  the 
Supreme  Judicial  Court  should  hold  their  offices  as  long  as  they 
behave  themselves  well,  and  that  they  should  have  honorable  sal- 
aries, ascertained  and  established  by  standing  laws,"  and,  we  will 
add,  not  required  to  "  board  around." 


156  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

Mr.  Justice  Gray,  in  deciding  the  case  of  the  United  States 
v.  The  Eeading  Kailroad,  123  U.  S.  114,  says:  "Trial  by 
jury  in  the  courts  of  the  United  States  is  a  trial  presided  over 
by  a  judge,  with  authority*  not  only  to  rule  upon  objections  to 
evidence,  and  to  instruct  the  jury  upon  the  law,  but  also,  when  in 
his  judgment  the  due  administration  of  justice  requires  it,  to  aid 
the  jury  by  explaining  and  commenting  upon  the  testimony  and 
even  giving  them  his  opinion  upon  the  questions  of  fact,  provided 
only  he  submit  those  questions  to  their  determination,"  citing  Vicks- 
burg  &  Meridian  Railroad  Co.  v.  Putnam,  118  U.  S.  545;  St.  Louis 
Railway  v.  The  Yickers,  1SS2  U.  S.  360.  We  would  like  for  some 
one  to  define  what  a  court  is  in  Illinois  under  our  practice.  We 
think  that  a  short  definition  of  an  Illinois  court  may  be  as  follows: 
A  court  is  composed  of  an  individual  called  a  judge,  assisted  by  a 
clerk,  whose  chief  duty  and  functions  are  to  look  wise  and  keep 
order.  He  has  no  power  to  sum  up  a  case  or  explain  anything  to  a 
jury  and  the  only  aid  or  assistance  that  he  can  render  them  is  to 
mark  "given"  or  "refused"  on  all  instructions  and  conundrums 
presented  to  him  by  the  attorneys  in  the  case. 


CHAPTER  XXXH 

Is  a  Constitutional  Convention  Necessary  to  Induce  the 
Supreme  Court  to  Recognize  and  Enforce  the  Statutes 
Relating  to  the  Common  Law. 

IT  is  well  enough  for  us  as  citizens  of  the  State  of  Illinois  and  as 
lawyers  to  remember  how  directly  we  are  connected  with  the 
great  expounders  of  the  common  law.  and  how  strenuously  we  should 
uphold  it  when  not  expressly  changed  by  statute.  We  all  know 
that  Illinois  was  once  the  frontier  county  of  Virginia,  and  that 
Virginia  was  founded  by  letters-patent  issued  by  James  I,  in  the 
fourth  year  of  his  reign,  to-wit,  April  10,  1606,  to  Sir  Thomas 
Gates,  Sir  George  Somers  and  others,  for  two  several  colonies  and 
plantations  to  be  made  in  Virginia  and  other  parts  and  territories, 
for  trading  and  also  for  propagating  the  Christian  religion  "to  such 
people  as  yet  live  in  darkness  and  miserable  ignorance  of  the  true 


iS  A  CONSTITUTIONAL  CONVENTION  NECESSARY.         157 

knowledge  and  worship  of  God,  and  may  in  time  bring  the  infidels 
and  savages  living  in  those  parts  to  human  civility  and  to  a  settled 
and  quiet  government." 

We  think  the  antiquaries  of  the  State  Bar  Association  should  in- 
vestigate this  matter  and  see  if  this  has  yet  been  accomplished;  for  if 
the  infidels  and  savages  living  in  these  parts  have  not  been  reduced 
to  "  human  civility,"  it  is  time  that  steps  be  taken  to  do  so.  We  also 
know  that  by  the  fifteenth  section  of  the  charter  of  1606  it  was  ex- 
pressly stipulated  by  the  king,  "for  us,  our  heirs  and  successors;  and 
we  do  declare, by  these  presents,  being  our  subjects,  which  shall  dwell 
and  inhabit  within  every  or  any  of  the  said  several  colonies  and  plan- 
tations, and  every  of  their  children  which  shall  happen  to  be  born 
within  any  of  the  limits  and  precincts  of  the  said  several  colonies 
and  plantations,  shall  have  and  enjoy  all  liberties,  franchises  and 
immunities  within  any  of  our  dominions,  to  all  intents  and  purposes, 
as  if  they  had  been  abiding  and  born  within  this  our  realm  of  Eng- 
land, or  any  other  of  our  said  dominions ;"  and  that  this  planted  in 
that  colony  and  plantation  of  Virginia  the  common  law,  in  all  of  its 
fullness  and  strength.  But  it  is  not,  we  think,  as  generally  known 
that  the  first  draft  for  the  proposed  first,  Virginia  charter  annexed 
to  the  petition  for  the  same  was  drawn  by  Sir  John  Popham;  that 
the  charter  itself  was  prepared  and  drawn  by  Sir  Edward  Coke, 
Attorney-General  under  James,  assisted  by  Sir  John  Dodderidge,  the 
Solicitor-General;  that  it  was  passed  under  the  Great  Seal  by  Sir 
Thomas  Edgerton,  at  that  time  Lord  Chancellor;  and  that  the  war- 
rant for  it  was  granted  by  Eobert  Cecil,  son  of  the  great  Lord  Bur- 
leigh,  known  as  Earl  of  Salisbury,  who  was  at  that  time  the  Secre- 
tary of  State;  and  that  the  first  drafts  annexed  to  the  petition  for 
the  second  and  third  charters,  extending  the  boundaries  from  sea  to 
eea,  and  enlarging  the  powers  of  the  first,  were  drawn  by  Sir  Edwin 
Sandys  ;  that  these  charters  were  prepared  by  Sir  Francis  Bacon 
and  Sir  Henry  Hobart,  and  were  passed  under  the  seal  also  of  Sir 
Thomas  Edgerton,  and  the  warrant  issued  by  Robert  Cecil. 

By  the  22d  section  of  the  second  charter  of  Virginia,  power  is 
conferred  upon  the  governors  and  those  ruling  and  governing  the 
colony,  "full  and  absolute  power  and  authority  to  correct,  punish, 
pardon,  govern  and  rule  all  such  subjects  of  ours  as  shall  from  time 
to  time  adventure  themselves  thither,"  etc.,  "so  always  as  the  said  stat- 
utes, ordinances  and  proceedings,  as  near  as  conveniently  may  be,  be 


158  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

agreeable  to  the  Jaws,  statutes,  government  and  policy  of  'our  realm 
of  this  England" 

The  third  charter  still  further  enlarged  the  boundaries  specified  in 
the  two  other  charters  so  as  to  include  any  islands  on  the  sea 
"  adjoining  to  the  said  coast  of  Virginia  and  without  the  compass  of 
those  two  hundred  miles,  by  us  so  granted  unto  the  said  treasurer 
and  company  aforesaid,"  etc.;  then  it  confers  additional  power  "  to, 
punish  deserters,  misdoers  and  offenders,  and  those  who  circulate 
vile  and  slanderous  reports,  by  summary  arrest,  and  punishing  and 
proceeding  to  all  intents  and  purposes  as  it  is  used  in  other  like 
cases  within  our  realm  of  England,"  etc. 

Hume  in  commenting  upon  the  force  and  effect  of  these  charters 
says:  "Speculative  reasoners  during  that  age  raised  many  objec- 
tions to  the  planting  of  those  remote  colonies  and  foretold  they 
would  soon  shake  off  her  yoke  and  erect  an  independent  govern- 
ment in  America;  but  time  has  shown  that  the  views  entertained  by 
those  who  encouraged  such  generous  undertakings  were  more  just 
and  solid."  In  less  than  a  generation  after,  the  "  speculative  rea- 
soners" became  prophets.  Hume  had  not  evidently  heard  of  George 
Washington,  George  Eogers  Clark  or  the  State  of  Illinois. 

Sir  John  Popham  was  speaker  of  Elizabeth's  fourth  Parliament 
1581-83,  was  Chief  Justice  of  the  Queen's  Bench,  June  2,  1592, 
when  he  was  knighted  and  made  Privy  Councillor.  He  presided 
at  the  trial  of  Sir  Walter  Raleigh  in  1603  when  Coke  prosecuted, 
and  both  acted  like  the  devil.  He  also  presided  at  the  trial  of  Guy 
Fawkes  and  his  associates  in  1606.  He  died  suddenly  June  10,  ]607. 
His  remains  repose  under  a  magnificent  tomb  in  the  church  at 
Wellington,  Somerset,  surrounded  by  a  palisade  of  wood  and  iron. 

Sir  Edward  Coke  and  Sir  Francis  Bacon  need  no  introduction  to 
the  American  lawyer  any  more  than  they  do  to  the  English  lawyer. 
Bacon  and  Coke  were  at  the  zenith  of  their  power  when  the  Pil- 
grims sailed  from  England,  and  it  was  on  the  22d  of  January,  1621, 
that  Bacon's  sixtieth  birthday  was  celebrated  with  such  eclat  at 
York  House,  the  ancient  seat  of  his  family,  when  his  friend,  Ben 
Jonson  read  that  celebrated  poem  containing  these  lines : 

•'  Hail  happy  genius  of  this  ancient  pile, 
How  comes  it  all  things  so  about  thee  smile, 
The  fire,  the  wine,  the  men,  and  in  the  midst 
Thou  stand'st  as  if  some  mystery  thou  didst. 


i&  A  CONSTITUTIONAL  CONVENTION  NECESSARY.       159 

England's  High  Chancellor,  the  destined  heir, 
In  his  soft  cradle,  to  his  father's  chair, 
Whose  even  thread  the  Fates  spin  round  and  full 
Out  of  their  choicest  and  their  whitest  wool." 

January  27th  lie  was  created  Yiscount  St.  Albans;  January  20th 
Parliament  met,  and  on  February  3d,  Bacon,  in  his  speech  referring 
to  the  "  benefits,  attributes  and  acts  of  government  of  King  James," 
says  :  "  This  kingdom  now  first  in  His  Majesty's  time  hath  gotten  a  lot 
or  portion  in  the  New  World,  by  the  plantation  of  Virginia  and  the 
Summer  Islands.  And  certainly  it  is  with  the  kingdoms  on  earth 
as  it  is  in  the  Kingdom  of  Heaven;  sometimes  a  grain  of  mustard 
seed  proves  a  great  tree.  Who  can  tell  ? "  Soon  after  clouds 
gathered  around  him.  He  was  tried,  convicted,  fined  and  impris- 
oned— released,  and  died  at  Arundell's  House  at  Highgate,  April  9, 
1626.  He  lies  buried  in  St.  Michael's  Church,  St.  Albans. 

In  1661-2,  a  sort  of  general  revision  of  the  laws  of  Virginia 
took  place  in  which  they  expressly  recognize  the  com;non  law  of 
England,  and  in  the  preamble  to  the  code  refer  to  the  great  con- 
fusion which  had  marked  that  period  as  follows :  "Whereas  the  late 
unhappy  distractions  caused  frequent  changes  in  the  government  of 
this  country,  and  those  produced  so  many  alterations  in  thu  laws 
that  the  people  knew  not  well  what  to  obey,  nor  the  judge  what  to 
punish,  by  which  means  injustice  was  hardly  to  be  avoided  and  the 
just  freedom  of  the  people  by  the  uncertainty  and  licentiousness  of 
the  laws  hardly  to  be  preserved,  this  assembly,  taking  the  same 
into  serious  consideration  and  gravely  weighing  the  obligations 
they  are  under  to  discharge  to  God,  the  king  and  the  country,  have, 
by  settling  the  laws,  diligently  endeavored  to  prevent  the  like 
inconveniences  by  causing  the  whole  body  of  the  laws  to  be  reviewed, 
all  unnecessary  acts,  and  chiefly  such  as  might  keep  in  memory  our 
enforced  deviation  from  His  Majesty's  obedience,  to  be  repealed  and 
expunged,  and  those  that  are  in  force  to  be  brought  into  one  volume, 
and  lest  any  prejudice  might  ariee  by  the  ignorance  of  the  times 
from  whence  these  acts  were  in  force,  they  have  added  the  duties 
of  every  act,  to  the  end  that  court  emight  rightly  administer  justice 
and  give  sentence  according  to  law  for  anything  happening  at  any 
time  since  any  law  was  in  force,  and  have  also  endeavored  in  all 
things  (as  near  as  the  capacity  and  Constitution  of  this  country 
would  admit)  to  adhere  to  t/iose  excellent  and  often  refined  laws 
of  England  to  which  we  profess  and  acknowledge  all  due  obedience 
and  reverence,"  etc.  2  Hening's  Statutes,  p.  4.3. 


160  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

The  charters  granted  by  King  James  I,  expressly  provide  for 
the  administering  the  law  according  to  the  common  law  of  England 
and  the  statutes  made  in  aid  thereof.  We  adopted  the  common 
law  here  when  we  were  a  Territory  and  finally  when  we  were 
admitted  into  the  Union  as  a  State;  now,  why  is  it  not  adhered  to 
in  the  impaneling  of  jurors  and  in  the  recognition  of  the  powers 
of  the  court  and  the  trial  of  all  criminal  cases  ? 

By  the  express  provisions  of  the  statutes  of  this  State,  it  is  pro- 
vided "that  the  common  law  of  England,  so  far  as  the  same  is 
applicable  and  of  a  general  nature,  and  all  statutes  or  acts  of  the 
British  Parliament  made  in  aid  of,  and  to  supply  the  defects  of 
the  common  law,  prior  to  the  fourth  year  of  James  the  First, 
excepting  the  second  section  of  the  sixth  chapter  of  forty-three 
Elizabeth,  the  eighth  chapter  of  thirteenth  Elizabeth  and  ninth 
chapter  of  thirty-seventh  Henry  Eighth  and  which  are  of  a  general 
nature  and  not  local  to  that  kingdom,  shall  be  the  rule  of  decision 
and  shall  be  considered  as  of  full  force  until  repealed  by  legislative 
authority." 

By  Section  428,  Chapter  38  of  the  Criminal  Code,  it  is  provided 
that  "all  trials  for  criminal  offenses  shall  be  conducted  according  to 
the  course  of  the  common  law,  except  when  this  act  points  out  a 
different  mode  and  the  rules  of  evidence  of  the  common  law  shall 
also  be  binding  upon  all  courts  and  juries  in  criminal  cases,  except 
as  otherwise  provided  by  law." 

Now  it  will  be  observed  by  all  lawyers  in  the  State  of  Illinois, 
that  the  only  things  pertaining  to  the  common  law  which  have  been 
expressly  abolished  by  statute  are  the  benefit  of  clergy,  appeals  of 
felony,  trials  by  battle  and  trials  by  a  jury  de  mediatate  linguce. 
All  elee  remains,  and  yet  the  Supreme  Court  has  by  its  rulings 
completely  ignored  these  statutes  for  nearly  forty  years.  They 
have  notably  ignored  them  by  reversing  case  after  case,  because 
the  court  erred  in  deciding  upon  the  competency  of  jurors  and  in 
many  other  ways  too  numerous  to  mention;  whereas  by  the  com- 
mon law  the  impaneling  of  a  jury  and  passing  upon  the  com- 
petency of  jurors  was  absolutely  in  the  discretion  of  the  presiding 
judge  and  no  case  can  be  found  where  it  was  ever  sought  to  review 
this  discretion.  Discretion  in  the  trial  of  criminal  cases  must  rest 
somewhere,  and  to  say  that  this  discretion  is  liable  to  abuse  and 
ought  not  to  be  vested  in  nisi  prius  judges  is  to  say  that  there 
ought  not  to  be  any  such  thing  at  all;  and  the  services  of  a  judge 


ADDRESS  IN  CONVENTION  MAY  13,  1870.  161 

might  as  well  be  dispensed  with  and  let  the  lawyers  for  the  accused 
and  the  jury  control  the  whole  trial. 

By  the  common  law  all  trials  were  by'a  judge  and  jury;  now 
such  a  thing  seems  to  be  wholly  unknown.  By  the  common  law  it 
was  the  duty  of  the  judge  to  tell  the  jury  what  the  case  was  about 
and  to  sum  up  the  facts;  to-day  all  a  judge  can  do  is  to  mark  instruc- 
tions given  or  refused. 

Why  is  it  that  the  statutes  relating  to  the  common  law  are  not 
recognized  and  enforced? 

Does  it  require  a  constitutional  convention,  we  repeat,  to  com- 
pel the  court  of  last  resort  to  recognize  and  enforce  them  ? 

Shakspeare  must  have  had  this  condition  of  things  in  mind  when 
he  said: 

"  We  have  strict  statutes  and  most  biting  laws 
(The  needful  bits  and  curbs  for  headstrong  steeds), 
Which,  for  these  fourteen  years,  we  have  let  sleep; 
Even  like  an  o'ergrown  lion  in  a  cave, 
That  goes  not  out  to  prey.     Now,  as  fond  fathers 
Having  bound  up  threatening  twigs  of  birch 
Only  to  stick  it  in  their  children's  sight, 
For  terror,  not  to  use;  in  time  the  rod 
Becomes  more  mocked  than  feared;  so  our  decrees, 
Dead  to  infliction,  to  themselves  are  dead, 
And  liberty  plucks  justice  by  the  nose." 

— Measure  for  Measure,  1,  3. 


CHAPTER  XXXIII. 

The  Address  of  the  Delegates  to  the  People,  Showing  the 
Changes  Made  in  the  Old  Constitution  and  the  Reforms 
Proposed. 

AT  the  time  when  we  were  called  upon  "to  alter,  revise  and 
amend  the  Constitution  "  of  this  State,  the  Constitution  of 
1848    had  become  almost  obsolete;   the  people  had  outgrown  it, 
and  great  abuses  existed  in  almost  every  department  of  the  govern- 
ment calling  for  the  most  radical  changes.     When  we  had  finished 
our  work  we  gave  an  account  of  our  stewardship.     We  issued  a 
11 


162  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

public  address  to  the  people,  in  which  we  recounted  our  labors  and 
the  reforms  sought  to  be  accomplished;  and  we  pointed  out  wherein 
we  had  altered,  revised  and  amended  the  Constitution.  That 
address  is  as  follows : 

ADDRESS  IN  CONVENTION  MAY  13,  1870. 

As  your  representatives  in  convention  to  "alter,  revise  and 
amend"  the  Constitution,  it  is  due  that  we  should  state  in  brief 
the  most  important  changes  proposed,  and  some  of  the  reasons 
therefor.  Our  State  Constitution  has  been  in  force  for  almost  a 
quarter  of  a  century,  during  which  time  our  population,  wealth  and 
interests  have  augmented.  However  wise  and  judicious  when 
adopted,  that  Constitution  has  become  wholly  inadequate  to  subserve 
the  necessities  of  the  State,  without  modifications  and  restrictions. 
To  secure  an  efficient  and  at  the  same  time  an  economical  adminis- 
tration of  the  several  departments  of  the  government,  a  new  Con- 
stitution is  an  imperious  necessity.  It  is  not  probable  that  any 
constitution  will,  in  all  respects,  fully  satisfy  any  one  man  in  the 
State.  Every  one  will  find  in  it  something  he  would  exclude,  and 
would  insert  something  it  does  not  contain.  It  -must  be  judged 
all  together,  and  if  better  than  the  old  Constitution,  it  should  be 
adopted.  In  all  human  institutions  the  good  and  evil  are  mixed 
and  sound  sense  demands  that  we  secure  the  greatest  good  attainable; 
and  we  must  often  be  content  if  we  get  more  wheat  than  tares. 
For  years  past  the  machinery  of  our  State  Government  has  been 
kept  in  motion  only  by  continued  violation  of  plain  and  positive 
constitutional  provisions.  Nothing  can  be  more  pernicious.  By 
this  the  people  lose  their  respect  for  the  laws,  and  learn  to  hold 
them  in  contempt.  A  reverence  for  constitutions  and  laws  is  the 
best  possible  guaranty  for  the  stability  of  the  State,  the  peace  and 
good  order  of  society,  and  the  protection  of  the  life,  liberty  and 
property  of  the  citizen.  And  whenever  it  becomes  necessary  to 
violate  a  constitution,  it  should  be  changed  to  meet  and  remove  the 
necessity  which  impelled  to  such  violation.  Our  State  Legislatures 
are  only  restrained  by  the  Constitution  of  the  State  and  of  the 
United  States.  It  is  therefore  necessary  that  State  Constitutions 
should  contain  many  regulations  and  restrictions,  while  the  Constitu- 
tion of  the  United  States  may  be  much  shorter,  for  that  is  a  gov- 
ernment of  delegated  powers,  with  only  the  incidental  powers 
necessary  and  proper  to  execute  the  powers  granted. 


ADDRESS  IN  CONVENTION  MAY  13,  1870.  163 

BILL  OF  EIGHTS. 

In  addition  to  the  usual  guarantees  of  natural  and  civil  liberty, 
we  have  declared  that  no  person  shall  be  denied  any  civil  or  politi- 
cal right  or  capacity  on  account  of  his  religious  opinions.  All  per- 
sons have  the  right  to  publish  the  truth,  with  good  motives  and 
for  justifiable  ends.  Private  property  shall  not  be  taken  or  dam- 
aged for  public  use'without  just  compensation,  to  be  ascertained  by 
a  jury.  The  fee  of  land  taken  for  railroad  tracks  is  to  remain  in 
the  owners,  subject  to  the  use  for  which  it  is  taken.  All  irrevo- 
cable grants  of  special  privileges  or  immunities  are  prohibited, 
to  protect  the  people  against  privileged  orders  and  dangerous 
monopolies.  Grand  juries  may  bs  dispensed  with.  Our  jails  are 
crowded  with  criminals  during  the  intervals  of  circuit  courts,  at 
great  expense  to  -the  counties.  County  courts  may  be  authorized 
to  try,  in  a  summary  manner,  many  criminal  cases,  and  thus  save 
the  counties  the  large  expenditures  of  keeping  prisoners  for  trial 
from  term  to  term  of  the  circuit  courts,  and  persons  not  guilty 
may  be  promptly  discharged  or  acquitted. 

LEGISLATIVE    DEPARTMENT. 

To  avoid  partisan  injustice  in  representative  districts,  and  the 
expense  and  delay  of  the  General  Assembly  in  making  them,  we 
have  provided  for  districting  the  State,  as  in  Ohio,  by  ratio  and 
computation.  To  guard  against  undue  influence  upon  members  of 
the  General  Assembly,  and  to  afford  small  counties  representatives, 
we  have  increased  their  numbers.  We  have  also  required  a  stringent 
oath  against  bribery  and  corruption.  To  afford  security  against 
hasty  and  vicious  legislation,  we  have  required  all  bills  and  amend- 
ments thereto  to  be  printed  before  they  are  passed.  Only  one  sub- 
ject shall  be  embraced  in  each  bill,  and  when  amendments  are  made 
to  laws,  or  acts  are  revived,  the  sections  amended  and  acts  revived 
must  be  stated  at  length.  The  evils  of  special  and  local  legislation 
have  become  enormous.  The  expense  to  the  State  in  passing  and 
publishing  such  laws,  and  the  combinations  by  which  private  specu- 
lations have  been  secured  and  monopolies  with  extraordinary  and 
dangerous  powers  have  been  created,  are  well  known.  We  have 
prohibited  the  General  Assembly  hereafter  from  passing  such  laws, 
and  have  required  general  laws  in  all  cases  where  a  general  law  can 
be  made  applicable.  We  have  forbidden  the  General  Assembly  from 
releasing  any  liability  to  the  State  or  to  any  municipal  corporation 


164  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

therein.  We  have  placed  additional  guards  against  speculative  con- 
tracts made  with  officers  of  the  State  for  stationery,  fuel,  etc.,  and 
we  have  limited  the  amount  of  expenditures  to  be  incurred  on 
account  of  the  State  capitol  now  in  process  of  construction. 

We  have  provided  for  public  and  private  roads,  and  for  the 
drainage  of  lands.  We  have  required  the  enactment  of  liberal 
homestead  and  exemption  laws,  and  laws  for  the  protection  of  min- 
ers; and  we  have  submitted  a  separate  article,  designed  to  protect 
producers  and  shippers  of  grain  against  frauds  in  warehouses. 

EXECUTIVE   DEPARTMENT. 

We  require  the  governor,  at  each  session  of  the  Legislature, 
and  at  the  close  of  his  term  of  office,  to  furnish  a  statement  of  all 
moneys  received  and  paid  out  by  him  from  any  funds  subject  to 
his  order,  with  his  vouchers  therefor.  We  make  it  the  duty  of 
the  auditor  of  public  accounts,  treasurer,  secretary  of  state  and 
superintendent  of  public  instruction  and  persons  in  charge  of  State 
institutions,  to  keep  an  account  of  all  moneys  received  or  disbursed 
by  them  severally,  from  all  sources  and  for  every  service  per- 
formed, and  to  make  a  semi-annual  report  thereof  to  the  governor, 
under  oath,  to  be  laid  before  the  General  Assembly;  thus  enabling 
the  representatives  of  the  people  to  expose,  and  by  suitable  laws 
prevent,  improvident  expenditures  and  frauds.  We  have  given  the 
governor  power  to  remove  all  officers  appointed  by  him,  in  case 
they  are  incompetent  or  are  guilty  of  malfeasance  in  office.  We 
have  provided  a  safer  mode  of  canvassing  the  votes  for  governor 
and  State  officers,  and  avoided  the  danger  of  collusion  in  cases  of 
contested  elections.  We  have  required  the  governor  to  submit  a 
careful  estimate  of  expenses  and  revenue  to  each  General  Assem- 
bly. This  will  restrain  extravagant  appropriations  and  give  the 
people  a  proper  understanding  of  the  financial  condition  of  the  State. 
We  have  made  the  veto  power  as  in  the  Constitution  of  the  United 
States,  only  to  be  overcome  by  a  vote  of  two-thirds  in  each  House 
of  the  General  Assembly.  Had  this  provision  been  in  our  existing 
Constitution,  it  would  have  saved  us  from  many  injurious  and 
unconstitutional  acts  and  many  chartered  monopolies  passed  by  the 
combinations  of  interested  persons. 

JUDICIAL  DEPARTMENT. 

We  have  endeavored  to  preserve  all  the  courts  to  which  our 
people  are  accustomed,  to  avoid  the  evils  of  too  great  a  variety  of 


ADDRESS  IN  CONVENTION  MAY  13,  1870.  165 

courts,  and  at  the  same  time  make  the  system  sufficiently  flexible 
to  allow  the  General  Assembly  to  provide  for  a  speedy  and  prompt 
administration  of  justice.  All  the  new  courts  indicated  are  left 
entirely  in  the  discretion  of  the  General  Assembly  to  create  or  not, 
as  the  public  wants  may  demand.  Our  Supreme  Court  is  bur- 
dened with  many  unadjudicated  cases,  and  decisions  are  delayed  to 
the  prejudice  of  suitors  and  the  public.  To  enable  that  court  to 
fully  investigate  and  properly  decide  and  write  out  creditable  opin- 
ions, we  have  added  four  more  judges  to  its  number.  We  have 
required  its  judges  to  be  elected  in  separate  districts,  and  at  times 
when  no  general  election  is  held,  to  avoid  a  partisan  court.  Should 
that  court  be  unable  to  dispose  of  its  cases  with  reasonable  dispatch, 
we  have  authorized  the  General  Assembly  to  create  an  appellate 
court,  which  may  be  held  in  each  county  by  the  circuit  judges, 
without  additional  compensation  and  with  jurisdiction  in  such  cases 
as  may  be  prescribed  by  law.  Such  courts  are  said  to  be  of  great 
value  in  Ohio  and  New  York.  We  contemplate  continuing  the 
old  circuit  court  system.  We  have,  however,  authorized  the  Gen- 
eral Assembly  to  provide  for  electing  not  exceeding  four  judges  in 
a  larger  circuit,  and  to  assign  them  to  duties  in  its  counties.  The 
advocates  of  this  system  affirm  that  it  has  worked  well  in  other 
States,  and  is  an  improvement  on  our  present  system;  that  it  avoids 
frequent  changes  of  venue  and  the  expenses  of  parties  and  wit- 
nesses occasioned  thereby;  that  it  secures  greater  uniformity  of 
practice  in  circuit  courts,  and  enables  the  people  to  procure  more 
competent  judges  and  dispose  of  their  suits  with  greater  facility. 

To  remove  the  evil  of  frequent  changes  of  the  times  of  holding 
courts,  we  have  provided  that  they  shall  not  be  altered  during  the 
terms  of  the  judges,  and  to  prevent  the  creation  of  too  many  cir- 
cuits we  have  put  restrictions  upon  the  same.  We  have  provided 
that  county  courts  may  have  additional  jurisdiction  conferred  by 
law,  and  county  judges,  if  desirable  hereafter,  may  be  elected  in 
districts  composed  of  two  or  more  counties,  and  probate  courts  may 
be  established  in  counties  having  a  population  over  50,000.  We 
have  provided  for  the  election  of  state's  attorneys  in  each  county,  in 
lieu  of  circuit  attorneys.  We  have  established  a  special  system  of 
courts  for  the  county  of  Cook,  which,  it  is  confidently  expected? 
will  meet  her  necessities.  We  have  required  laws  relating  to  courts 
to  be  of  general  and  uniform  operation;  and  the  organization,  juris- 
diction, powers,  proceedings  and  practice  of  all  courts  of  the  same 


166  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

class,  so  far  as  regulated  by  law,  and  the  force  and  effect  of  process, 
judgments  and  decrees  of  such  courts,  shall  be  uniform.  We  have 
made  it  the  duty  of  all  judges  of  courts  of  record  to  furnish  the 
General  Assembly  with  defects  they  may  discover  in  our  laws. 
The  performance  of  this  duty  with  fidelity  will  enable  the  Legisla- 
ture to  simplify  and  perfect  our  statutes. 

All  existing  courts  are  continued  until  otherwise  provided  by  law. 

ELECTION    AND    BIGHT   OF   SUFFRAGE. 

"We  have  made  our  law  on  suffrage  conform  to  the  Constitution 
of  the  United  States,  and  extended  that  right  to  persons  informally 
naturalized  before  courts  of  record  anterior  to  January,  1870;  and 
we  have  submitted  a  separate  article  on  minority  representation. 

COMMON    SCHOOLS. 

We  have  required  a  thorough  and  efficient  system  of  common 
schools,  and  that  all  grants  and  donations  for  common  school  pur- 
poses shall  be  applied  to  their  use  with  fidelity.  We  have  forbid- 
den the  General  Assembly  and  all  public  corporations  from  donating 
money  or  property  to  any  church,  or  for  any  sectarian  purpose,  or 
for  any  school  controlled  by  any  church  or  sect ;  and  we  have  pro- 
hibited school  teachers  and  school  officers  from  being  interested  in 
the  sale  of  books,  apparatus  and  furniture  in  the  schools  with  which 
they  are  connected. 

REVENUE. 

We  have  retained  the  valuable  features  of  the  revenue  article  in 
the  Constitution  of  1848,  and  have  provided  in  addition  that  before 
sales  of  real  estate  for  taxes  are  made,  a  return  of  unpaid  taxes 
shall  be  made  to  some  general  officer  of  the  county  for  collection, 
with  authority  to  sell  for  default,  on  an  order  of  a  court  of  record, 
the  object  being  to  secure  uniformity  of  sales,  prevent  abuses,  and  to 
provide  a  general  and  convenient  mode  by  which  persons  interested 
may  obtain  information  and  pay  assessments  or  taxes,  or  redeem 
from  tax  sales.  We  have  forbidden  the  General  Assembly  from 
discharging  any  county,  city,  township  or  district  from  its  propor- 
tionate share  of  State  taxes,  and  prohibited  all  commutations 
for  such  taxes,  thus  securing,  in  State  taxation,  equality  of  burdens 
for  common  benefits,  and  we  have  repealed  the  two-mill  tax. 

COUNTIES. 

We  have  provided  that  if  a  portion  of  a  county  is  added 
to  another  county,  its  inhabitants  shall  be  obliged  to  pay  its 


ADDRESS  IN  CONVENTION  MAY  13,  1870.  167 

proportion  of  the  indebtedness  of  the  county  from  which  it 
is  taken.  We  have  required  that  voters  on  the  question  of 
removing  county  seats  shall,  next  before  the  election,  reside  in 
the  county  six  months,  and  in  the  election  precinct  ninety  days; 
and  that  the  question  of  the  removal  of  the  county  seat  shall  not 
be  oftener  submitted  than  once  in  ten  years;  and  we  have  submitted 
separately  the  question  whether  less  than]  three-fifths  of  the  votes 
cast  shall  be  sufficient  for  the  removal  of  a  county  seat,  when  pro- 
posed to  be  moved  further  from  the  center  of  a  county.  "We  have 
provided  that  counties  having  adopted  township  organization,  may, 
by  vote,  dispense  with  the  same.  We  have  provided  that  counties 
not  under  township  organization  may  elect  a  board  of  three  county 
commissioners  to  manage  their  county  affairs,  one  of  whom  shall  be 
elected  every  year;  and  we  have  made  special  provisions  for  Cool: 
county.  We  have  provided  for  the  usual  county  officers  and  their 
compensation.  All  officers  who  are  paid  by  fees,  are  required  to 
make  a  semi-annual  report,  under  oath,  of  their  fees  and  emolu- 
ments. 

OITIESj  TOWNS,  ETC. 

In  the  numerous  cities  and  towns  of  this  State,  streets,  alleys, 
sidewalks,  etc.,  are  indispensable  to  their  growth  and  prosperity* 
They  must  be  graded,  paved  and  kept  in  repair.  How  this  shall 
be  done,  how  paid  for,  what  proportion  by  the  owners  of  con- 
tiguous property,  and  what  by  general  contribution,  the  people 
of  the  particular  town  or  city  are  better  qualified  to  decide  than 
others  can  be.  The  same  system  will  not  be  suited  to  the  wishes  or 
necessities  of  all  places.  Under  our  present  la '.vs.,  streets  and  side- 
walks are  falling  into  decay,  and  a  radical  reform  is  indispensable. 
To  remove  this  evil,  we  have  authorized  the  Legislature  to  vest  in 
each  city  and  town  full  power  and  control  of  such  improvements, 
and  of  the  means  best  adapted  to  its  wishes,  circumstances  and 
necessities.  For  all  other  purposes,  taxation  therein  must  be  uni- 
form. We  have  also  prohibited  the  General  Assembly  from  impos- 
ing taxes  upon  municipal  corporations  for  corporate  purposes.  If, 
in  all  other  respects,  the  two  Constitutions  are  equal,  these  provis- 
ions alone  should  secure  the  support  of  every  citizen  of  every  town 
and  city  in  the  State. 

CORPORATIONS. 

We  have  provided  that  no  corporation,  public  or  private,  shall 
be  created  or  have  its  charter  amended  by  special  law,  except 


1G8  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

institutions  for  charitable,  educational  or  reformatory  purposes, 
under  the  patronage  of  the  State.  All  grants  of  chart 2rs  for  special 
and  exclusive  privileges  under  which  no  organizations  have  taken 
place,  or  which  shall  not  have  been  in  operation  within  ten  days 
after  this  Constitution  takes  effect,  shall  be  invalid.  We  have  pro- 
hibited the  construction  of  street  railways  without  the  consent  of 
the  local  authorities  in  towns  and  cities ;  and  we  have  provided  for 
the  protection  of  the  minority  of  stockholders  of  private  corpora- 
tions in  the  election  of  directors. 

BANKS. 

"We  have  prohibited  the  State  from  being  interested  in  any 
banking  corporation;  forbidden  the  establishment  of  any  bank  of 
issue,  deposit  or  discount  without  the  approval  of  a  majority  of  votes 
cast  at  a  general  election.  We  have  declared  that  no  suspension 
of  specie  payments  shall  be  legalized;  and  we  have  required  that 
banks  shall  deposit  ample  securities  for  the  protection  of  their 
creditors. 

RAILROADS. 

We  have  provided  that  railroads  owning  parallel  or  competing 
lines  shall  not  be  consolidated,  and  that  a  majority  of  the  directors 
shall  be  residents  of  this  State.  We  have  declared  railroads  to  be 
public  highways,  and  required  the  General  Assembly  to  establish 
reasonable  maximum  rates  of  charges,  and  to  prevent  unjust  dis- 
criminations and  extortions.  We  have  asserted  the  right  of  the 
State,  by  the  exercise  of  the  power  of  eminent  domain,  to  subject 
the  property  and  franchises  of  incorporated  companies  to  the  public 
use,  the  same  as  the  property  of  natural  persons.  We  have  pro- 
vided against  the  release  of  the  obligation  of  the  Illinois  Central 
Kailroad  to  the  State,  thereby  securiug  to  the  State  nearly  half  a 
million  of  dollars  annually. 

STATE,    COUNTY   AND   MUNICIPAL  INDEBTEDNESS. 

We  have  prohibited  the  State  from  contracting  indebtedness 
beyond  $250,000,  without  submitting  the  law  to  the  people.  We  have 
forbidden  the  General  Assembly  from  loaning  the  credit  of  the 
State  and  making  appropriations  from  the  treasury  in  aid  of  inter- 
nal improvements,  and  from  paying  or  assuming  the  debts  or  lia- 
bilities of  any  public  or  other  corporation,  association  or  individual. 
We  have  prohibited  county  authorities  from  ever  assessing  taxes, 
the  aggregate  of  which  shall  exceed  seventy-five  cents  per  $100 


ADDRESS  IN  CONVENTION  MAY  13,  1870.  169 

valuation,  except  for  the  payment  of  indebtedness  existing  at  the 
adoption  of  this  Constitution,  unless  authorized  by  a  vote  of  the 
people  of  the  county.  We  have  forbidden  cities,  counties  and  all 
public  corporations  from  creating  or  further  increasing  their 
indebtedness  above  five  per  cent,  on  the  value  of  the  taxable  prop- 
erty within  the  same,  and  required  that  at  the  time  of  incurring 
such  indebtedness,  an  annual  tax  shall  be  levied,  sufficient  to  pay 
the  interest  as  it  falls  due,  and  to  discharge  the  principal  within 
twenty  years.  For  want  of  such  a  provision  in  our  State  Constitu- 
tion, our  counties,  towns  and  cities  have  contracted,  liabilities  of 
over  $50,000,000.  "We  have  submitted  a  separate  article  prohibit- 
ing all  municipal  subscriptions  to  railroad  stock. 

FEES  AND   SALARIES. 

Under  the  present  Constitution  it  was  found  practically  impos- 
sible to  carry  on  the  three  departments  of  government  without 
evading  its  provisions.  The  compensation  allowed  the  governor, 
State  officers,  judges  and  members  of  the  General  Assembly,  was 
wholly  insufficient  in  times  when  the  prices  of  all  the  necessaries  of 
life  were  increased,  and  the  currency  inflated.  By  general  and 
special  laws,  the  fees  of  clerks  and  inferior  officers  afforded  them 
much  greater  incomes  than  the  salaries  of  governor  and  judges,  and 
in  the  populous  counties,  and  in  Chicago,  those  fees  afforded  com- 
pensation beyond  all  reasonable  bounds.  "We  have  inaugurated  a 
system  by  which  all  perquisites  of  judges  and  State  officers  will  be 
prohibited.  We  have  limited  members  of  the  General  Assembly 
to  fifty  dollars  each  per  session,  in  addition  to  their  per  diem  and 
mileage,  in  full  for  postage,  stationery,  stamps,  newspapers  and  all 
other  incidental  perquisites.  These  perquisites  amounted  at  the 
last  session  of  the  General  Assembly  to  over  fifty-four  thousand 
dollars,  which  was  about  five  hundred  dollars  to  each  member. 

We  have  provided  that  the  fees  and  salaries  of  all  officers  under 
the  Constitution  shall  not  be  increased  or  diminished  during  their 
terms;  and  that,  with  few  exceptions,  such  fees  and  salaries  shall 
be  fixed  before  their  terms  commence.  We  have  abolished  all  special 
laws  in  relation  to  fees,  and  put  in  force  the  general  laws  in  such 
cases ;  and  we  have  required  the  next  General  Assembly,  by  general 
uniform  law,  to  provide  and  regulate  fees  of  all  persons  holding 
county  offices,  and  their  successors,  so  as  to  reduce  the  same  to  a 
reasonable  compensation,  in  not  exceeding  three  grades  in  the  dif- 


170  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

ferent  counties ;  and  all  laws  fixing  the  fees  of  State,  county  and 
township  officers  shall  terminate  with  the  terms  of  those  in  office  at 
the  meeting  of  the  first  General  Assembly. 

We  have  provided  that  State  and  county  officers  shall  be  paid 
reasonable  salaries,  out  of  the  fees  collected  by  them,  and  that  the 
surplus  be  paid  into  the  State  or  county  treasury.  Thus,  fees  and 
salaries  may  hereafter  be  regulated  by  the  condition  of  the  country; 
"and  we  have  allowed  all  officers  now  in  office  to  serve  out  their 
terms. 

AMENDMENTS   TO  THE    CONSTITUTION. 

To  save  all  controversy  in  the  future  convention  to  amend  the 
Constitution,  we  have  fixed  the  qualification  of  its  members,  the 
oath  of  office  they  shall  take,  the  manner  of  filling  vacancies,  and 
provided  that  amendments  proposed  by  such  convention,  before 
they  take  effect,  shall  be  ratified  by  the  electors  of  the  State.  As 
a  means  of  avoiding  the  necessity  and  expense  of  such  a  conven- 
tion, we  have  provided  that  two-thirds  of  each  House  of  the  Gen- 
eral Assembly,  may  submit  amendments  to  any  one  article  of  the 
Constitution;  and  if  ratified  by  the  people  at  the  succeeding  general 
election,  such  amendments  shall  constitute  part  of  the  Constitution. 
Such  are  some  of  the  prominent  amendments  we  propose. 
They  are  the  result  of  much  labor,  reflection  and  discussion,  and 
we  are  confident  that  interest  and  inclination  will  induce  you  to 
give  them  that  earnest,  careful  and  candid  consideration  they 
deserve,  and  that  you  will  render  such  a  decision  as  will  promote 
your  own  well  being,  and  the  future  prosperity  of  the  powerful, 
patriotic  and  progressive  State  of  Illinois.  And  it  will  afford  us 
sincere  pleasure,  in  after  years,  to  find  that  our  efforts  have,  in 
some  measure,  contributed  to  such  desirable  consummation. 
W.  H.  UNDERWOOD,  Chairman.  S.  S.  HAYES, 
O.  H.  BROWNING,  WM.  GARY, 

L.  S.  CHURCH,  GEO.  E.  WAIT, 

L.  W.  Ross,  J.  C.  ALLEN, 

J.  W.  ENGLISH,  M.  HAY, 

JOSEPH  MEDILL,  JESSE  S.  HILDRUP, 

W.  J.  ALLEN,  H.  P.  H.  BROMWELL, 

WM.  C.  GOODHUE,  EDWARD  Y.  RIOB. 


CHAPTER  XXXIT. 

How  State  Taxes  Have  Been  Diverted,  School  Lands  Stolen» 
and  Other  Abuses  under  the  Old  Regime,  with  Some 
Remarks  on  the  Value  of  the  "  Pay  As  You  Go  "  Policy. 


T^HE  history  of  the  State  of  Illinois  shows  that  in  the  past  we 
suffered  much  from  the  granting  of  special  charters  and  hasty 
legislation  and  we  did  what  we  could  to  stop  it.  Under  the  then 
existing  order  of  things,  the  public  interests  seemed  to  have  heen 
almost  forgotten  and  just  about  three  quarters  of  the  time  of  the 
General  Assembly  was  taken  up  in  the  consideration  of  private 
bills  and  the  granting  of  special  charters,  whereas  now,  everybody  is 
upon  an  equality,  and  general  laws,  instead  of  being  the  excep- 
tion, are  the  rule.  In  our  address  we  say:  "We  have  provided 
that  no  corporation,  public  or  private,  shall  be  created  or  have  its 
charter  amended  by  special  laws,  except  institutions  for  charitable, 
educational  or  reformatory  purposes  under  the  patronage  of  the 
State." 

We  found  a  condition  of  things  existing  in  many  parts  of  the 
State  that  will  scarcely  be  believed  at  the  present  time. 

We  found  that  under  the  guise  of  assisting  in  the  construction 
of  railroads  in  new  sections  of  the  State,  that  towns,  cities,  villages 
and  even  school  districts  had  voted  large  subsidies,  and  had  issued 
their  bonds  to  pay  for  the  same,  and  that  the  people,  and  especially 
the  taxpayers  and  property  owners,  were  in  danger  of  having  their 
property  confiscated.  In  many  counties  the  state  of  affairs  was 
such  that  persons  avoided  them,  and  those  seeking  homes  in  the 
West  could  not  be  induced  to  settle  there.  We  investigated  this 
matter  thoroughly  and  obtained  from  the  auditor  a  list  of  such  in- 
debtedness, and  found  that  it  was  enormous.  In  many  instances 
laws  had  been  passed  diverting  the  State  taxes  and  appropriating 
them  to  pay  the  interest  on  the  bonds  of  municipal  indebtedness. 
The  State  Auditor  was  made  the  paymaster  of  these  various  munici- 
palities and  every  effort  was  put  forward  to  compel  the  State  to 
assume  all  these  debts. 

(171) 


172  CONSTITUTIONAL    HISTORY  OP  ILLINOIS. 

As  a  specimen  we  present  one  single  report  upon  this  subject 

made  by  the  State  Auditor.     This  report  was  made  by  the  request 

of  the  convention  and  in  it  he  says  : 

"  The  American  Bottom  Levee  Company  gets  the  State  tax 
on  all  property  assessed  in  four  (4)  townships  in  St. 
Clair  county  for  live  (5)  years  under  private  laws,  1867, 
Vol.  2,  page  795;  assessed  valuation  of  said  townships  in 
1868,  $1,534,125;  estimated  revenue  fund  tax  for  1869  $12,273 

The  St.  Clair  and  Monroe  Draining  Company  gets  the 
State  tax  on  the  increased  valuation  of  subsequent  years 
over  valuation  of  1859,  for  fifteen  years  from  1865 
under  private  laws,  1865,  Vol.  2,  page  2,  in  certain  dis- 
tricts in  the  counties  of  Monroe  and  St.  Clair;  estimated 
amount  of  State  revenue  tax  for  1869,  in  surplus  valua- 
tion of  1869  over  1859 2,000 

The  Kaskaskia  River  Navigation  Company  under  private 
laws,  1869,  page  872,  gets  the  State  tax  on  all  property 
assessed  in  nine  (9)  townships  for  ten  (10)  years  from 

1868  in  Randol  ph  county.    Net  valuation  in  1868  amounts 
to  $1,089,555;  estimated  amount  State  revenue  tax  for 

1869  thus  given 2,400 

Alexander  county  under  public  laws  1869,  page  330,  gets 

all  State  tax  collected  in  said  county  for  the  years  1869- 

1870;  estimated  amount  of  revenue  fund  tax  for  1869. .  14,000 

Mound  City  (Pulaski  county)  under  private  laws  1867, 
Vol.  1,  page  837,  gets  State  tax  on  all  property  in  said 
city  for  ten  years  from  1867;  estimated  revenue  fund 
for  1869  thus  given 2,500 

City  of  Shawneetown  (Gallatin  county)  by  its  charter,  pri- 
vate laws  1861,  page  272,  gets  State  tax  on  all  property 
assessed  in  said  city  for  twenty  years.  Revenue  fund 
State  tax  on  assessment  1869,  in  said  city,  estimated  to 
exceed 3,500 

Wabash  River  and  its  tributaries  in  Allison  Prairie  Levee 
^Company  (Lawrence  county)  gets  the  State  tax  on  all 
property  assessed  in  six  (6)  townships  for  ten  (10)  years 
from  1866,  laws  1867  (private),  page  305,  Vol.  2.  The 
property  in  said  township  assessed  for  1868,  $418,461; 
estimated  revenue  State  tax  for  1869 3  000 


AfitJSES  tttDER  THE  OLD  REGIME. 

Surplus,  etc.,  revenue  tax  (State)  on  assessment  1869  over 
assessment  1868,  given  to  counties,  townships,  cities  and 
towns  in  aid  of  railroads,  public  laws  1869,  page  316, 
estimated  by  auditor  in  levying  rates  of  taxes  for  1869 
to  amount  to  for  1869 4,728 


Total  amount  of  revenue  tax  on  assessment  to  be  disposed 

of  for  one  year  by  the  foregoing  laws $50,701 

In  estimating  the  foregoing  amounts  only  the  revenue  fund  State 
tax  was  taken  into  consideration.  Heretofore,  it  has  been  considered 
that  said  acts  appropriated  the  tax  levied  to  pay  interest  on  the  State 
debt;  but  in  a  recent  case  that  came  before  me,  I  held  that  said 
interest  tax  could  not  be  so  diverted.  Should  this  ruling  be  con- 
tested in  the  Supreme  Court,  and  not  sustained  by  said  court,  the 
amounts  I  have  given  in  each  case,  as  well  as  the  aggregate,  would 
be  increased  one-eighth. 

Yery  respectfully, 

C.  E.  LIPPINCOTT, 

Auditor." 

See  Yol.  1  of  the  Constitutional  Debates,  1870,  p.  413-14. 

If  this  report  of  the  auditor  is  carefully  examined,  and  its  bear- 
ings understood,  it  will  present  a  most  extraordinary  showing,  and 
if  Cook  county  had  thus  received  at  any  time  any  such  magnificent 
donations  for  any  purpose,  of  the  State  taxes,  there  would  have 
been  a  universal  outcry. 

As  a  supplement  to  the  above  and  foregoing,  a  most  interesting 
chapter  will  be  unfolded  by  referring  to  page  736  of  the  journal  of 
the  convention,  and  there  examining  the  "  statement  of  State  taxes 
appropriated  and  diverted  from  the  State  treasury  by  special  laws 
during  the  last  ten  years,"  together  with1  a  reference  to  the  laws 
themselves,  made  by  the  auditor  by  request  of  the  convention. 

The  amounts  which,  first  and  last,  have  been  taken  from  the 
State  treasury  and  appropriated  for  the  benefit  of  private  corpora- 
tions and  local  improvements,  and  for  the  benefit  of  towns,  cities 
and  villages  in  the  rural  districts,  would,  if  carefully  collected, 
amount  to  several  millions,  while  Cook  county  has  never  got  a 
dollar  that  we  are  aware  of. 

Another  thing  we  discovered,  and  it  was  this:  that  when  the 
appetite  for  greed  and  rapacity  had  once  been  developed,  it  stopped 
at  nothing  and  knew  no  bounds  whatever. 


174  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

"We  had  at  one  time  a  large  quantity  of  valuable  lands  belonging 
to  the  college  and  seminary  fund  of  the  State,  located  in  the  county 
of  Cook.  The  people  of  southern  Illinois  found  it  out  and  in  1861 
got  an  act  through  the  Legislature  incorporating  an  institution 
which  they  called  the  "Illinois  Agricultural  College"  (a  private  con- 
cern^— not  the  State  Agricultural  College  at  Champaign  at  all,  but 
a  private  institution),  came  up  to  our  county,  took  these  lands  and 
sold  them,  and  soon  after  this  high-sounding  institution  was  found 
to  be  bankrupt  and  all  the  money  which  was  derived  from  the  sale 
of  these  lands  was  lost  and  squandered.  We  then  came  to  the  con- 
clusion that  the  indiscriminate  organization  of  private  corporations 
by  special  laws,  with  special  powers  and  privileges,  was  a  great  abuse 
and  that  some  check  ought  to  be  placed  upon  the  Legislature  in 
granting  them  and  therefore  a  check  was  placed  upon  the  Legisla- 
ture for  so  doing. 

Under  the  wise  and  judicious  lead  of  the  late  Hon.  Wm.  F. 
Coolbaugh,  who  had  had  great  experience  under  somewhat  similar 
circumstances  in  the  State  of  Iowa,  and  who  had  a  national  reputa- 
tion as  a  financier,  we  adopted  the  principle  of  pay  as  yougo,  which, 
if  carried  out,  will  be  worth  millions  to  this  and  all  future  genera- 
tions. It  is  a  curious  thing  that  in  this  age,  when  wealth  is  so 
universally  diffused,  that  so  few  have  ever  mastered  the  rudiments 
of  political  economy,  and  stranger  still,  that  no  one  seems  to  under- 
stand the  value  of  a  dollar. 

To  the  great  mass  of  the  people  it  seems  to  be  evidence  of  the 
highest  wisdom  if  public  improvements  can  be  made  by  borrowing 
money  at  high  rates  of  interest,  provided  bonds  can  be  issued  to 
pay  for  the  same,  and  they  never  bestow  a  thought  upon  how 
either  the  interest  is  to  be  paid  or  the  principal  satisfied. 

The  common  councils  of  our  cities  and  other  municipal  bodies 
beat  against  the  barriers  which  protect  the  public  treasury,  like 
prisoners  against  their  grated  cells.  Taxpayers  ought  to  have  some 
guaranty  against  improvidence  and  the  dangers  of  confiscation. 

We  believe  if  it  had  not  been  for  the  wise  and  conservative 
policy  to  be  pursued  in  the  levying  and  collecting  of  taxes,  and  the 
limitations  on  taxation  provided  in  the  Constitution,  that  the  city  of 
Chicago  would  to-day  be  in  debt  $100,000,000  instead  of  thirteen 
or  fourteen  millions. 

We  found,  in  addition  to  the  foregoing,  that  a  system  of  com- 
mutation of  taxes  had  been  inaugurated,  by  which  thousands  upon 


ABUSES  UNDER  THE  OLD  REGIME.  175 

thousands  of  dollars  of  the  public  revenues  had  been  taken  and 
appropriated  to  local  improvements  and  private  purposes,  while  the 
other  portions  of  the  State  were  supplying  all  the  defenses.  This 
we  remedied,  and  we  said  in  our  address: 

"We  have  forbidden  the  General  Assembly  from  discharging 
any  county,  city,  township  or  district  from  its  proportionate  share 
of  State  taxes,  and  prohibited  commutation  for  such  taxes;  thus 
securing  in  State  taxation,  equality  of  burdens  for  common  benefits; 
and  we  have  repealed  the  two-mill  tax.  *  *  * 

We  have  prohibited  the  State  from  contracting  indebtedness 
beyond  $250,000,  without  submitting  the  law  to  the  people.  We 
have  forbidden  the  General  Assembly  from  loaning  the  credit  of 
the  State  and  making  appropriations  from  the  treasury  in  aid  of 
internal  improvements  and  from  paying  or  assuming  the  debts  or 
liabilities  of  any  public  or  other  corporation,  association  or  individ- 
ual. We  have  prohibited  county  authorities  from  over-assessing 
taxes,  the  aggregate  of  which  shall  exceed  seventy-five  cents  per 
$100  valuation,  except  for  the  payment  of  indebtedness  existing  at 
the  adoption  of  the  Constitution,  unless  authorized  by  a  vote  of  the 
people  of  the  county.  We  have  forbidden  cities,  counties  and  all 
public  corporations  from  creating  or  further  increasing  their  indebt- 
edness above  five  per  cent,  in  the  value  of  the  taxable  property 
within  the  same,  and  required  that  at  the  time  of  incurring  such 
indebtedness  an  annual  tax  shall  be  levied  sufficient  to  pay  the 
interest  as  it  falls  due  and  to  discharge  the  principal  within  twenty 
years.  For  want  of  such  a  provision  in  our  State  Constitution,  our 
counties,  towns  and  cities  have  contracted  liabilities  of  over 
$50,000,000.  We  have  submitted  a  separate  article  prohibiting  all 
municipal  subscriptions  to  railroad  stock. 

The  judicial  department  of  the  government  was  reorganized  and 
adequate  salaries  provided  for  and  the  Legislature  given  power  to 
change  them  from  time  to  time,  to  adjust  them  so  as  to  allow  an 
increase  if  necessary;  whereas,  before,  they  were  fixed  by  the  Con- 
stitution and  made  unchangeable.  Uniform  laws  were  required  to 
be  passed  relating  to  the  organization,  jurisdiction,  powers,  pro- 
ceedings and  practice  of  the  courts  of  the  same  class  so  far  as  reg- 
ulated by  law,  and  the  force  and  effect  of  process,  judgments  and 
decrees  of  such  courts  shall  be  uniform." 


o 


CHAPTEE  XXXY. 
The  Organization  and  Government  of  Great  Cities. 

NE  of  the  greatest  and  most  valuable  characteristics  of  our  Con- 


stitution is  that  provision  which  absolutely  prohibits  class 
legislation  and  the  passage  of  special  and  private  laws,  and  of 
"granting  to  any  corporation,  association  or  individual,  any  special 
privilege,  immunity  or  franchise  whatever  by  special  law."  This 
feature  of  our  Constitution  has  received  universal  commendation, 
both  in  this  country  arid  in  England,  and  is,  as  one  of  the  members 
of  the  British  House  of  Commons  told  me,  one  of  the  most  valuable 
prerequisites  that  was  ever  appended  to  a  fundamental  law.  It 
is  a  standing  proclamation  to  the  world  and  to  the  people  of  the 
State  of  Illinois  that  the  contest  for  life  here  shall  be  that  of  a  free 
fight  and  no  favors — Queensbury  rules. 

The  mode  of  "regulating  county  and  township  affairs,"  and  of 
"incorporating  cities,  towns  or  villages,  or  changing  or  amending 
the  charter  of  any  town,  city  or  village,"  it  will  be  observed,  shall 
be  by  general  laws.  But  there  is  no  prohibition  whatever  in  the 
Constitution  regarding  their  classification  ;  and  while  it  may  be  that 
the  Supreme  Court  would  hold  that  there  could  not  be  a  law,  gen- 
eral in  its  character,  to  apply  to  cities  of  one  million  and  upwards, 
we  doubt  it.  We  think  that  general  powers  can  be  provided  for  in 
the  organic  laws  of  cities  which  would  be  ample  for  every  emer- 
gency. But  the  Constitution  does  not  provide  or  say  anything  how 
cities  shall  be  organized;  whether  they  shall  be  governed  as  a  private 
corporation  or  by  a  mayor  and  common  council,  composed  of  fifty 
or  five  hundred;  therefore  the  government  of  cities  is  an  open 
question,  and  is  fast  becoming  the  great  problem  of  the  age. 

The  rural  districts  seem  to  be  decreasing  in  population,  while 
the  young  and  rising  generation  seem  to  be  struggling  up  from  the 
small  towns,  cities  and  villages,  and  throwing  themselves  upon  the 
world  of  the  metropolis. 

Hon.  Andrew  D.  White,  late  President  of  Cornell  University, 
one  of  the  most  cultivated  of  Americans,  and  a  man  who  has  had  great 
opportunities  for  observation,  both  in  this  country  and  in  Europe, 

(176) 


ORGANIZATION  AND  GOVERNMENT  OF  GREAT  CITIES.     177 

has  discussed  the  "  Government  of  American  Cities  "  in  the  Decem- 
ber number  of  "  The  Forum,"  1890,  in  a  most  masterly  manner, 
and  we  commend  it  to  all  legislators  and  constitution  makers  as 
worthy  of  their  most  thoughtful  consideration.  lie  shows  that  we 
are  attempting  to  govern  our  cities  upon  "a  theory  which  has 
never  been  found  to  work  practically  in  any  part  of  the  world." 

His  caution  is,  that,  the  questions  in  a  city  not  being  political 
questions,  but  having  reference  to  the  laying  out  of  streets,  to  the 
erection  of  buildings,  to  sanitary  arrangements,  to  the  control  of 
franchises  and  the  like,  and  to  provisions  for  the  public  health  and 
comfort  in  parks,  boulevards,  libraries  and  museums,  that  the  work 
of  the  city  should  be  logically  managed  as  a  piece  of  property  by 
those  who  have  created  it  and  who  have  a  title  to  it  or  a  real  sub- 
stantial part  in  it.  As  things  are  now,  says  he,  "a  city  is  a  polit- 
ical organization  over  which  a  crowd  of  illiterate  peasants,  freshly 
raked  in  from  Irish  bogs,  or  Bohemian  mines,  or  Italian  robber- 
nests  may  exercise  virtual  control;  and  how  they  control  it  (speak- 
ing of  New  York  City)  we  know  too  well." 

As  a  compromise  between  the  political  and  the  corporate  idea, 
he  says,  however,  "I  would  elect  the  mayor  by  the  votesot'the  major- 
ity of  all  the  citizens  as  at  present;  I  would  elect  the  common  coun- 
cil by  a  majority  of  all  the  votes  of  all  the  citizens,  so  that  wards 
composed  largely  of  thieves  and  robbers  can  not  send  thieves  and 
robbers,  and  so  that  men  who  can  carry  their  ward  can  not  control 
the  city;  I  would  elect  the  board  of  aldermen  on  a  general  ticket, 
just  as  the  mayor  is  elected  now,  thus  requiring  candidates  for  the 
board  to  have  a  city  reputation.  So  much  for  retaining  the  idea  of 
the  city  as  a  political  body.  In  addition  to  this,  in  consideration 
of  the  fact  that  the  city  is  a  corporation,  we  would  have  those 
owning  property  in  it  properly  recognized. 

"I  would  leave  to  them,  and  to  them  alone,  the  election  of  a  board 
of  control,  without  whose  permission  no  franchise  should  be 
granted,  and  no  expenditure  should  be  made.  This  should  be  the 
rule.  *  *  *  A  theory  resulting  in  a  system  virtually  like  this 
has  made  the  cities  of  Europe,  whether  in  monarchies  or  repub- 
lics, what  they  are,  and  has  made  it  an  honor  in  man}'  foreign 
countries  for  the  foremost  citizens  to  serve  in  the  common  coun- 
cils of  their  cities."  There  is  nothing  in  our  present  Constitution 
to  prevent  the  trial  of  this  theory. 
12 


178  CONSTITUTIONAL  HISTORY    OF    ILLINOIS. 

The  justice  of  the  peace  system  plight  well,  at  the  present  time, 
be  superseded  by  district  courts,  which  should  be  courts  of  record, 
with  such  criminal  jurisdiction  as  to  enable  them  to  try  and  dispose 
of,  summarily,  all  criminal  cases  below  the  degree  of  felony  and  such 
cases  of  misdemeanor  punishable  by  fines  and  imprisonment  in  the 
penitentiary,  as  should  be  provided  by  law. 

The  history  of  the  twenty-eighth  section  of  the  judiciary 
article  of  the  Constitution  of  the  State,  relating  to  the  appointment 
of  justices  of  the  peace  in  the  city  of  Chicago,  is  interesting. 

For  years  before  the  constitutional  convention  was  called  to 
revise  the  Constitution,  great  complaint  existed  as  to  the  manner 
in  which  the  law  was  administered  in  the  justice  courts,  and  as  to 
the  class  of  persons  who  filled  the  offices.  In  many  instances,  the 
justices  of  the  peace  were  ward  loafers  and  bummers,  and  in  connec- 
tion with  the  constables  who  hung  around  their  offices,  perpetrated 
the  most  outrageous  crimes  upon  the  poor  and  defenseless  who  were 
so  unfortunate  as  to  come  within  their  grasp.  Conspiracies  were 
found  to  exist,  in  some  instances,  between  the  justices  and  constables, 
to  prefer  charges  against  people  for  violation  of  laws  and  ordinances 
of  the  city;  and  they  would  then  be  brought  before  the  magistrates 
and  fined,  or  the  suits  compromised  and  the  money  divided  between 
the  justices  and  the  constables.  The  whole  administration  of  the 
law  had  become  a  farce,  and  was  oftentimes  attended  with  scenes  of 
brutality  shocking  to  humanity.  In  one  instance,  an  ex-judge  of  a 
circuit  court,  while  trying  a  case,  was  set  upon  by  policemen  at 
the  command  of  the  justice,  for  a  fancied  insult  to  his  Majesty, 
and  mauled  to  death — at  least  he  died  soon  after  the  assault  made 
upon  him,  from  the  effects  of  the  beating.  Public  attention  finally 
became  aroused,  and  indictments  were  found  against  some  of  the 
justices  and  constables,  and  they  were  convicted  and  punished.  It 
seemed  as  if  no  remedy  could  be  offered  the  public  under  the  old 
system  of  electing  justices,  and  a  universal  outcry  went  up  for  an 
entire  change  in  the  system,  and  for  a  better  class  of  men  to  fill  the 
offices.  The  newspapers  all  took  part  in  the  discussion,  and  the 
examples  of  Boston  and  New  York  were  cited,  where  district 
courts  existed,  presided  over  by  judges  who  had  limited  juris- 
diction in  civil  and  criminal  cases,  and  who  disposed  of  almost  all 
cases  of  misdemeanors  and  minor  offenses  without  the  interven- 
tion of  a  grand  jury.  Judge  Russell,  of  Boston,  we  believe,  long 
presided  over  one  of  these  inferior  courts  and  was  elevated  from 


ORGANIZATION  AND  GOVERNMENT  OF  GREAT  CITIES.    179 

that  position  to  the  Supreme  Court.  "When  the  constitutional 
convention  assembled,  we  were  flooded  with  petitions  from  the 
people  asking  us  to  change  the  system  from  election  to  appointment- 
I  introduced  into  that  body,  on  January  5  or  7,  1870,  the  following 
resolution. 

AMENDMENTS  OF  THE  OLD    SYSTEM. 

"There  shall  be  no  justices  of  the  peace  in  the  city  of  Chicago, 
but  the  said  city  shall  be  divided  into  districts,  and  one  judge  elected 
for  each  district,  who  shall  hold  his  office  for  the  term  of  four  years 
and  until  his  successor  is  elected  and  qualified.  ~No  person  shall  be 
elected  a  judge  of  the  said  District  Court,  unless  he  shall  be  an 
attorney  at  law  and  have  been  a  resident  of  the  city  of  Chicago  at 

least  years  next  preceding  his  election.  There  shall  be  a 

clerk  of  each  of  the  said  courts,  and  such  other  officers  as  may  be 
provided  by  law.  Said  courts  shall  have  jurisdiction  in  civil  cases 
when  the  amount  in  controversy  does  not  exceed  two  hundred  dol- 
lars, and  such  criminal  jurisdiction  as  may  be  provided  by  law. 
Said  judges  and  clerks  shall  receive  such  compensation  as  may  be 
provided  by  law,  and  all  fees  and  perquisites  shall  be  paid  into  the 
city  treasury." 

This  section  was  referred  to  the  judiciary  committee,  of  which 
Mr.  Hayes  and  myself  were  members.  The  matter  was  considered 
by  the  judiciary,  and  they  finally  reported  it  back  to  the  convention 
in  these  words: 

"SEC.  40.  There  shall  be  no  justices  of  the  peace  or  police 
magistrates  in  the  city  of  Chicago,  after  the  expiration  of  the  terms 
of  the  existing  justices  of  the  peace  and  police  magistrates,  and  the 
General  Assembly  shall,  at  its  first  session  after  the  adoption  of 
this  Constitution,  divide  the  city  into  districts,  and  establish  courts 
therein,  to  consist  of  one  or  more  judges  for  each  district,  and  such 
officers  as  may  be  provided  by  law.  The  judges  of  said  courts 
shall  be  appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  Senate;  but  no  person  shall  be  appointed  except 
upon  the  recommendation  of  a  majority  of  the  judges  of  the  cir- 
cuit, superior  and  county  courts,  and  shall  hold  their  offices  for 
four  years  and  until  their  successors  be  commissioned  and  qualified. 
Such  courts  shall  have  jurisdiction  in  civil  cases  at  law  in  said  city 
when  the  amount  in  controversy  does  not  exceed  $200,  and  such 
criminal  jurisdiction  as  may  be  conferred  by  law." 


180  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

"  The  compensation  of  said  judges  shall  be  fixed  by  law,  and  paid 
out  of  the  city  treasury,  and  shall  not  be  increased  during  their 
term  of  office.  All  fees  and  perquisites  shall  be  paid  into  the  city 
treasury.  Appeals  in  civil  cases,  from  justices  of  the  peace  in  said 
county,  and  from  said  courts  established  in  said  districts,  shall  be 
allowed  in  the  Circuit  or  Superior  Court  of  Cook  county,  in  such 
manner  as  may  be  provided  by  law."  [Debates  and  proceedings  of 
the  Convention,  2d  vol.,  p.  1481.] 

When  this  came  up  for  consideration,  Mr.  Hayes,  under 
instructions  from  the  Cook  county  delegation,  arose  and  offered  the 
following  as  a  compromise  measure,  and  as  a  substitute  for  the 
above,  to-wit : 

"  SECTION  40.  All  justices  of  the  peace  in  the  city  of  Chicago 
shall  be  appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  Senate,  (but  only  upon  the  recommendation  of  a 
majority  of  the  judges  of  circuit,  superior  and  county  courts),  and 
for  such  districts  as  are  now,  or  shall  hereafter  be,  provided  by  law. 
They  shall  hold  their  offices  for  four  years,  and  until  their  succes- 
sors have  been  commissioned  and  qualified,  but  they  may  be  removed 
by  summary  proceeding  in  the  circuit  or  superior  court  for  extor- 
tion or  other  malfeasance.  Existing  justices  of  the  peace  and 
magistrates  may  hold  their  office  until  the  expiration  of  their  respect- 
ive terms." 

The  adoption  of  this  section  was  most  rigorously  opposed  by 
the  Hon.  O.  H.  Browning,  Cummings,  of  Fulton,  Hankins  and 
Allen,  of  Crawford,  and  was  supported  by  Messrs.  Hayes,  Wall, 
Underwood,  Coolbaugh  and  myself,  and  was  finally  adopted  by  a 
vote  of  46  yeas  to  19  nays. 

WHY  THE  CHANGE  WAS  MADE. 

The  reason  why  it  was  made  from  the  original  proposition 
and  from  the  section  as  reported  by  the  judiciary  committee,  was 
principally  because  the  people  in  Chicago  thought  that  if  district 
courts  were  established  they  would  become  very  expensive,  and  it 
was  thought  more  judicious  to  provide  simply  for  the  appointment  of 
justices  of  the  peace  rather  than  for  judges.  Great  opposition  mani- 
fested itself  in  the  convention  against  making  the  innovation  of 
appointing  justices  of  the  peace.  Many  thought  that  it  was 
depriving  the  people  of  their  rights  to  take  away  from  them  so 
precious  a  privilege  as  electing  their  own  local  magistrates.  I  am 


ORGANIZATION  AND  GOVERNMENT  OF  GREAT  CITIES.    181 

satisfied  that  if  the  original  plan  had  been  adopted,  it  would 
have  been  a  great  benefit  to  the  people  and  would  have  dispensed 
with  the  grand  jury  in  all  that  kind  of  cases  which  are  classed  as 
misdemeanors,  and  would  have  resulted  in  speedy  justice.  There 
is  no  reason  why  the  law  should  not  be  administered  with  as  much 
intelligence  in  our  lower  courts  as  in  our  higher  courts.  In  Boston 
and  in  many  other  of  our  large  cities  the  inferior  courts  are  pre- 
sided over  by  well-educated  lawyers,  and  the  judges  compare  favor- 
ably with  the  judges  of  the  higher  courts.  The  convention  was 
assured  at  the  time  of  the  adoption  of  the  present  section  that  nobody 
but  men  versed  in  the  law  would  be  called  upon  to  administer  the 
law.  and  in  the  debate  which  afterward  occurred  on  abolishing  grand 
juries,  the  matter  was  again  referred  to.  It  was  stated  that  the 
examination  of  criminals  in  the  city  of  Chicago  would  take  place 
before  intelligent  magistrates  versed  in  the  law,  and  that  the  great 
delays  which  now  take  place,  in  awaiting  the  action  of  grand  juries, 
would  be  done  away  with. 

I  think  on  the  whole  that  the  system  has  worked  well.  Some  of 
the  justices  at  the  present  time  are  first-class  men,  men  of  culture 
and  standing,  and  learned  in  the  law,  and  are  a  credit  to  the  city. 
And  if  they  were  all  of  the  same  class  it  would  be  better;  and  then, 
if  vested  with  criminal  jurisdiction,  they  could  be  of  the  greatest 
service  to  the  people,  and  would  relieve  the  Criminal  Court  of  many 
trifling  cases,  and  save  the  public  and  taxpayers  thousands  of  dollars 
annually. 

There  seems  to  be  a  great  difference  of  opinion  about  how  much 
our  justices  and  constables  realize  from  fees.  This  matter  could  all 
be  put  at  rest  if  the  General  Assembly  would  pass  a  law  to  meet 
the  requirements  of  section  13  of  article  10  of  the  Constitution, 
which  provides  as  follows : 

"  Every  person  who  is  elected  or  appointed  to  any  office  in  this 
State,  who  shall  be  paid  in  whole  or  in  part  by  fees,  shall  be  required 
by  law  to  make  a  semi-annual  report,  under  oath,  to  some  officer  to 
be  designated  by  law,  of  all  his  fees  and  emoluments." 

I  think  that  the  justice  courts  in  the  city  of  Chicago  are  of  the 
greatest  importance,  and  that  the  position  should  be  made  one  of 
honor,  and  a  sure  guaranty  that  the  man  who  is  a  justice  of  the 
peace  in  this  city  is  a  man  of  character  and  respectability.  There  is 
no  difficulty  whatever  in  finding  such  men.  The  character  of  these 
courts  is,  as  a  whole,  better  than  ever  before,  and  the  Constitution 


182  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

expressly  provides  that  any  one  of  them  may  be  removed  by  sum- 
mary proceedings  in  the  Circuit  or  Superior  Court,  for  extortion, 
or  other  malfeasance. 

TO  INCREASE  THEIE   EFFICIENCY. 

If  all  justices  of  the  peace  in  the  city  of  Chicago  could  be 
selected  for  their  intelligence  and  character,  and  with  a  view  to  the 
public  good,  and  without  fear  or  favor,  and  without  regard  to  nation- 
ality or  grounds  of  expediency,  and  then  clothed  with  the  power  of 
trying  and  convicting  persons  charged  with  misdemeanors  and  minor 
offenses,  I  believe  that  it  would  save  the  city  of  Chicago  thou- 
sands of  dollars  a  year,  and  be  equivalent  to  adding  200  men  to  the 
present  police  force  of  the  city.  The  administration  of  the  crim- 
inal law  at  the  present  time  in  this  city  should,  if  possible,  be 
improved,  and  more  speedy  trials  take  place.  The  efforts  of  the 
police  are  often  paralyzed  by  the  delays  attending  the  arrest 
and  conviction  of  criminals,  while  the  county  jail  is  kept  full  and 
running  over  by  persons  awaiting  examination  by  the  grand  jury 
and  those  awaiting  trial. 

So  far  as  Cook  county  is  concerned  the  problem  of  blending 
the  city  and  county  governments  and  abolishing  township  organiza- 
tion is  more  difficult;  but  if  anything  more  comprehensive  is  required, 
a  simple  amendment  regarding  the  same,  submitted  to  the  people, 
can  easily  be  made  to  accomplish  all  that  is  required  without  call- 
ing together  a  constitutional  convention. 

The  interests  of  the  city  of  Chicago  are  such  that  they  must 
necessarily  engage  a  good  deal  of  the  attention  of  our  Legislature. 

In  1880  the  population  of  Illinois,  as  we  have  elsewhere  shown, 
was  3,077,877.  Thirty-five  per  cent,  of  the  inhabitants,  or  938,620, 
lived  in  Cook  county  and  in  the  thirty-eight  towns,  exclusive  of 
Chicago,  which  had  a  population  of  over  4,000  each.  In  1890,  the 
population  is  returned  as  3.818,536  persons  of  whom  1,642,732  or 
forty-three  per  cent,  live  in  this  county  and  the  thirty-eight  towns, 
and  cities  like  Aurora,  Elgin,  Springfield,  etc. 

In  ten  years  the  urban  population  of  the  State  has  grown  sev- 
enty-five per  cent.  The  gain  in  the  rest  of  Illinois  has  been  less 
than  20,000. 

If  to  the  dwellers  in  this  county  and  the  thirty-eight  principal 
towns  were  added  the  residents  of  all  villages  having  a  population 
of  a  thousand  and  over,  they  would  form  decidedly  more  than  half 
the  inhabitants  of  the  State, 


ORGANIZATION  AND  GOVERNMENT  OF  GREAT  CITIES.    183 

The  population  of  Illinois  to-day  is  3,818,536;  in  1880,  3,077,- 
877;  in  1870,  2,539,891. 

Superintendent  Porter,  in  contrasting  the  rural  with  the  urban 
population,  says:  "In  Ohio,  Indiana,  Iowa  and  Missouri,  and  in 
Illinois,  if  the  city  of  Chicago  be  dropped  from  consideration,  the 
rate  of  increase  has  declined  decidedly.  In  Ohio  it  has  fallen  from 
20  to  15  per  cent;  in  Indiana,  from  18  to  11;  in  Iowa,  from  36  to 
17;  in  Missouri,  from  26  to  23,  in  spite  of  the  rapid  growth  of  St. 
Louis  and  Kansas  City;  and  in  Illinois,  dropping  Chicago  from  con- 
sideration, from  14.9  to  5.6  per  cent. 

It  is  an  entire  mistake  to  suppose  that  every  reform  that  is  pro- 
posed and  every  change'in  the  existing  order  of  things  should  be 
provided  for  in  the  Constitution. 

The  Legislature  has,  we  assert,  the  power  to  make  any  changes 
upon  any  subject  within  the  bounds  of  the  Legislature,  in  all  cases 
where  it  is  not  prohibited  by  the  Constitution  itself,  and  in  any  case 
where  the  Legislature  is  prohibited  such  prohibition  can  be  easily 
removed  by  submitting  an  amendment  covering  the  subject.  Those 
who  are  so  eager  for  a  constitutional  convention  and  who  are  so  pro- 
fuse in  condemning  the  present  Constitution,  wholesale  and  retail, 
would  do  well  to  consider  wherein  the  Legislature  is  so  crippled, 
restrained  and  restricted  as  to  prevent  its  acting.  We  would  like  to 
have  some  one  point  out  any  particular  thing  which  is  required 
to  be  done  and  which  is  necessary  to  be  done  at  the  present  time, 
that  can  not  be  accomplished  by  the  ordinary  means  of  legislation. 

No  general  attack  on  the  whole  instrument  will  suffice.  We 
want  a  bill  of  particulars.  If  legislation  is  required  for  Cook 
county  and  the  city  of  Chicago,  which  can  not  now  be  obtained  owing 
to  some  "  restraining  order  "  of  the  Constitution,  then  we  say  that 
an  amendment  can  be  submitted  which  would  confer  all  power  upon 
the  General  Assembly  not  only  to  re-organize  the  municipal  govern- 
ment, but  regulate  all  its  affairs  in  every  way  that  may  be  desired. 
No  constitutional  convention  is  required  for  any  such  purpose. 

We  have  heard  much  complaint  about  judges  exercising  func- 
tions not  pertaining  to  the  judicial  office  proper,  such  as  election 
commissioner,  or  drainage  commissioner,  at  one  and  the  wune  time, 
and  that  such  things  ought  to  be  prohibited  by  the  Constitution. 
But  why,  we  would  like  to  know,  should  the  Constitution  provide  for 
this,  when  it  is  to-day  wholly  within  the  power  of  the  Legis^tnre? 

If  there  is  a  need  of  a  constitutional  convention   for  any  one 


184  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

thing  more  than  another,  it  is  to  enlarge  the  police  power  of  the 
State  in  regard  to  sanitary  matters  in  cities,  and  to  confer  power 
upon  the  General  Assembly  and  compel  that  department  of  govern- 
ment to  pass  a  law  requiring  owners,  occupiers  and  abutters  upon 
the  public  streets  to  keep  their  sidewalks  free  from  dirt  and  filth. 
Our  Supreme  Court  say  that  this  can  not  be  done  under  our  present 
Constitution,  although  there  is  nothing  in  that  instrument  to  pro- 
hibit it. 

This  view  we  do  not  concur  in,  and  believe  it  to  be  unsound. 
The  power  to  compel  owners  and  abntters  on  sidewalks  to  keep 
them  clean  is  a  power  which  is  exercised  in  every  other  city,  so  far  as 
we  know,  in  the  American  Union,  and  in  all  other  civilized  countries 
beneath  the  sun.  "We  are  perfectly  aware  of  the  reasons  assigned 
by  the  Supreme  Court  for  their  view  of  the  subject,  and  it  is 
based  upon  the  theory  that  a  sidewalk  is  nothing  but  a  part  of  the 
public  street  and  you  might  as  well  compel  the  abutting  owner  to 
clean  the  street  as  the  sidewalk;  but  we  submit  that  this  view  is 
fallacious  and  that  the  analogy  does  not  hold  good  in  all  its  parts- 
The  man  who  owns  a  house  and  lot,  or  store,  has  certain  rights  and 
privileges  to  the  use  of  the  sidewalk,  which  nobody  else  has.  He 
may  occupy  certain  portions  of  it  for  the  display  of  his  goods  and 
wares;  he  may  place  machinery  under  the  same,  and  use  it  for  coal 
vaults  and  other  purposes,  and  may  even  have  removed  any  one 
who  comes  before  his  premises  and  blocks  it  up  or  obstructs  it,  and 
such  persons  have  interests  above  and  beyond  and  paramount  to 
all  others.  Why,  then,  should  not  they  be  compelled  to  keep  their 
sidewalks  clean  ? 

This  matter  is  of  such  importance  to  the  cities  of  this  State,  and 
especially  the  city  of  Chicago,  that  if  we  can  not  have  it  remedied 
short  of  a  constitutional  convention,  then  we  are  in  favor  of  calling 
it  to-morrow. 


CHAPTER  XXXVI. 

Frequent   Changes  in  the   Organic  Law  of  a  State  not 

Desirable. 

rTlHE  tendency  on  the  part  of  all  young,  aspiring  and  ambitious 
-L  statesmen  seems  to  be  innovation,  and  to  overload  the  people 
with  a  multiplicity  of  laws  and  to  swell  our  Constitutions  into 
volumes. 

The  experience  of  our  State  is  not,  we  think,  very  much  different 
from  other  States  in  regard  to  inexperienced  men  undertaking  to 
frame  laws  for  the  government  of  the  people.  The  record  upon 
this  subject  as  kept  by  ex-Governor  Ford,  and  as  stated  by  him  in 
his  "History  of  Illinois,"  is  as  follows:  "The  Assembly  having 
organized  the  State  government  and  put  it  in  motion,  adjourned  to 
meet  again  in  the  winter  of  1818-19.  At  this  adjourned  session 
a  code  of  statute  law  was  passed,  mostly  borrowed  from  the  statutes 
of  Kentucky  and  Virginia.  Upon  examining  the  laws  of  that  day, 
it  will  be  seen  that  they  are  generally  better  drawn  up  than  those 
which  were  passed  at  a  later  and  more  enlightened  period. 

The  members  were  mostly  ignorant  and  unpretending  men; 
there  was  then  some  reverence  for  men  of  real  knowledge  and  real 
abilities;  the  world  was  not  then  filled  with  audacious  and  ignorant 
pretenders ;  and  the  sensible  and  unpretending  members  were 
content  to  look  to  men  of  real  talents  and  learning  to  draw  their 
bills.  But  in  these  days  of  empiricism  and  quackery  in  all  things, 
when  every  ignorant  pretender  who  has  the  luck  to  break  into  the 
Legislature  imagines  himself  to  be  a  Lycurgus  or  a  Moses,  very  few 
good  laws  have  been  made ;  and  those  which  we  have,  were  drawn 
by  men  of  talents,  who  were  not  members,  for  the  most  part. 

But  this  code  did  not  stand  long.  For  many  sessions  after- 
ward,  in  fact  until  the  new  revision  in  1827,  all  the  standard  laws 
were  regularly  changed  and  altered  every  two  years  to  suit  the  taste 
and  whim  of  every  new  Legislature.  For  a  long  time  the  rage  for 
amending  and  altering  was  so  great  that  it  was  said  to  be  a  good 
thing  that  the  Holy  Scriptures  did  not  have  to  come  before  the  Leg- 
islature, for  that  body  would  be  certain  to  alter  and  amend  them 

(185) 


186  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

so  that  no  one  could  tell  what  was  or  was  not  the  word  of  God,  any 
more  than  could  be  told  what  was  or  was  not  the  law  of  the  State. 

A  session  of  the  Legislature  was  like  a  great  fire  in  the  bound- 
less prairies  of  the  State.  It  consumed  everything.  And  again  it 
was  like  the  genial  breath  of  spring,  making  all  things  new."  Ford's 
History  of  111.  p.  31-2. 

The  moral' of  all  this  is  that  u  the  evils  that  inevitably  flow  from 
any  fundamental  change  in  the  institutions  of  a  country,  are  apt  to 
be  much  more  serious  than  the  evils  which  the  change  is  intended 
to  remove.  Political  government  is  like  a  plant;  a  little  watering 
and  pruning  do  very  well  for  it,  but  the  less  its  roots  are  fooled  with 
the  better." 

Change,  merely  for  the  sake  of  change,  is  nnwise  and  unjustifi- 
able. We  should,  in  all  of  our  dealings  with  the  fundamental  law 
of  the  land,  exercise  that  true  spirit  of  reform  which  animates  the 
reformer  and  conservative  alike,  and  which  keeps  the  whole  fabric 
standing,  by  repairing  and  improving  it  from  time  to  time,  instead  of 
tearing  it  down  and  digging  for  relics  amid  its  ruins.  Very  much 
will,  in  every  country,  depend  upon  the  homogeneous  elements  of 
the  people  and  their  ideas  of  what  enters  into  and  constitutes  a  stable 
government.  Mere  theories  will  not  amount  to  anything.  French- 
men in  the  fourteenth  and  fifteenth  centuries  had  theories  as  mag- 
nificent as  any  that  have  been  put  forth  in  the  eighteenth  or  nine- 
teenth. And  they  had  even  then  already  learned  to  do  deeds  of 
blood  in  the  name  of  freedom  and  philanthropy.  Therefore  French 
institutions  have  not  lasted.  The  States-General  lived  but  a  fitful 
life  from  century  to  century  and  they  perished  forever  in  the 
great  revolution.  Since  that  time  no  French  institution,  no  form, 
either  of  the  legislative  or  of  executive  powers  has  been  able  to  keep 
up  a  continuous  being  of  twenty  years.  It  would  be  hard  to  reckon 
up  the  number  of  assemblies,  conventions,  chambers  of  deputies  and 
legislative  bodies  which  have  risen  and  fallen  in  France  within  the 
last  100  years,  nor  how  many  written  constitutions  they  have  formu- 
lated, adopted  and  promulgated  as  embodying  the  true  and  eternal 
principles  of  civilized  government  within  the  same  period.  At  the 
great  exposition,  which  was  held  in  Paris,  1876,  there  were  exhib- 
ited under  a  glass  case  some  sixteen  or  seventeen  constitutions  finely 
engrossed  on  parchment,  of  their  skill  in  providing  organic  laws  for 
the  government  of  their  people,  and  upon  reckoning  up  the  period 
of  thuir  duration,  it  will  appear  that  not  one  of  them  lasted  beyond 


CHANGES  tfoT  DESI&ABII}. 

fifteen  or  sixteen  years  except  that  of  the  third  republic,  which  is 
now  bnt  a  few  days  beyond  the  twenty-first  year. 

We  admit  that  the  process  of  amending  oar  Constitution  is 
slow  and  cumbrous,  but  this  can  be  most  effectually  done  away  by 
providing  that  any  number  of  amendments  may  be  submitted  at  one 
and  the  same  time;  in  other  words,  remove  the  prohibition  on  the 
number  of  amendments  to  be  submitted  at  any  one  time. 

We  do  not  insist  upon  the  immutability  of  the  fundamental  law 
at  all,  but  we  do  insist  that  it  shall  not  be  changed  without  some 
good  reason  and  some  good  cause,  for  nothing  is  more  deleterious 
than  the  constant  upheaval  and  turmoil  which  such  a  revolution 
produces. 

There  is  a  class  of  persons  who  are  never  satisfied  with  any- 
thing, but  are  ready  to  stir  up  discontent  and  create  dissatisfaction 
on  the  very  slighest  pretense.  The  condition  of  people  who  live 
amid  constant  turmoil  is  not  conducive  to  peace  and  happiness,  nor 
the  public  welfare.  A.  constitution  ought  to  be  permitted  to 
remain  in  force  long  enough  at  least,  for  the  people  to  become 
acquainted  with  it  before  it  is  overthrown  and  cast  aside  as  useless. 
We  do  not  think  that  the  times  are  very  propitious  for  constitution- 
making  and  we  think  that  the  very  air  is  filled  with  vagaries  and 
unpractical  theories  which,  if  followed  out,  will  lead  us,  we  know  not 
where. 

There  are  in  a  republic  always  on  hand  a  set  of  men  who  may  be 
called  traders  in  sedition;  who  are  ready  at  a  moment's  notice  to 
jump  into  the  arena  and  inflame  the  public  mind.  There  is  danger 
that  at  this  conjuncture,  men  of  more  zeal  than  wisdom  may  obtain 
a  fatal  influence  over  the  masses.  "  With  these  men  will  be  joined 
others,  who  have  neither  zeal  nor  wisdom,  common  barrators  in 
politics,  dregs  of  society,  which,  in  times  of  violent  agitation  are 
tossed  up  from  the  bottom  to  the  top,  and  which  in  quiet  times 
sink  again  from  the  top  to  their  natural  place  at  the  bottom.''* 

A  crisis  like  that  which  we  have  mentioned,  which  makes  every 
honest  citizen  sad  and  anxious,  fills  these  men  with  joy  and  with  a 
detestable  hope.  How  is  it  that  such  men,  formed  by  nature  to  be 
objects  of  mere  contempt,  can  ever  inspire  terror  ?  How  is  it  that 
they  became  dangerous  to  both  Empires  and  Republics  ?  The  secret 
of  their  power  lies  in  the  indolence  or  faithlessness  of  those  who 
ought  to  take  the  lead  in  the  redress  of  public  grievances. 

"  The  whole  history  of  low  traders  in  sedition  is  contained  in 


188  CONSTITUTION  At  HISTORY    OF   ILLINOIS. 

that  fine  old  Hebrew  fable  which  we  have  read  in  the  book  of 
Judges.  The  trees  meet  to  choose  a  king.  The  vine  and  the  fig 
tree  and  the  olive  tree  decline  the  office;  then  it  is  that  the  sov- 
ereignty of  the  forest  devolves  upon  the  bramble;  then  it  is  that 
from  a  base  and  noxious  shrub  goes  forth  the  fire  which  devours 
the  cedars  of  Lebanon." 

Let  us  be  instructed. 

We  do  not  distrust  the  future,  but  we  think  that  there  should 
be  inculcated  a  proper  regard  for  so  important  a  document  as  the 
charter  of  the  people,  which  is  known  as  the  organic  law,  and  that 
it  should  not  be  changed  without  good  cause. 

One  of  the  wisest  and  most  profound  students  of  history  says : 
"Popular  governments  make  many  mistakes  and  sometimes  the 
people  are  slow  in  finding  them  out,  but  when  once  they  have  dis- 
covered them  they  have  a  way  of  correcting  them.  A  popular 
government  is  the  best  kind  of  government  in  the  world,  the  most 
wisely  conservative,  the  most  steadily  progressive  and  the  most 
likely  to  endure." 

In  many  of  the  States  the  Legislature  is  required  at  stated  inter- 
vals to  submit  to  the  people  the  question  of  holding  a  constitutional 
convention  and  if  the  people  vote  in  favor  of  the  same  then  one  is 
called  by  the  Legislature.  In  New  Hampshire  this  question  is  sub- 
mitted to  a  vote  of  the  people  every  seven  years;  in  Iowa  every 
ten  years;  in  Michigan  every  sixteen  years;  in  New  York.  Ohio, 
Maryland  and  Virginia  every  twenty  years. 


CHAPTEK  XXXYll. 

Illinois  Ought  to  Be  a  Model  Republic  with  a  Constitution 
and  Laws  to  Correspond. 

AS  civilization  advances  and  mankind  reach  a  higher  altitude,  a 
different  standard  must  be  adopted  than  when  ruder  methods 
prevailed.  The  consequences  of  the  past  are  reaching  forward  and 
upward  to  a  loftier  ideal  than  was  ever  thought  of  in  the  infancy 
of  the  State. 

Illinois  ought  to  be  the  model  republic  in  our  great  galaxy  of 
States,  and  her  Constitution  and  her  laws  ought  to  be  characterized 
by  the  greatest  wisdom  and  the  highest  enlightenment. 

Prior  to  the  year  1800,  eight  or  ten  keel  boats  of  about  twenty- 
five  tons  each,  performed  all  the  carrying  trade  between  Cincinnati 
and  Pittsburg.  The  first  government  vessel  appeared  on  Lake 
Erie  in  1802;  the  first  steamboat  was  launched  at  Pittsburg  in  1811, 
the  first  on  Lake  Michigan  in  1826,  and  the  first  appeared  in  Chi- 
cago in  1832. 

Illinois  contains  55,405  square  rniles  or  35,459,200  acres  of  lands. 
It  has  10,000  more  square  miles  than  New  York  and  Ohio,  and 
is  nearly  as  large  as  all  New  England. 

The  superintendent  of  the  census  in  his  report  in  1860  says: 
"  Illinois  presents  the  most  wonderful  example  of  great,  continuous 
and  healthful  increase.  In  1830  Illinois  contained  157,445  inhabi- 
tants;  in  1840,  476,183;  in  1850,  851,470;  in  1860,  1,711,951. 

The  gain  during  the  last  decade  was  therefore  860,481,  or 
101.66  per  cent. 

So  large  a  population,  more  than  doubling  itself  in  ten  years  by 
the  regular  course  of  settlement  and  natural  increase,  is  without 
parallel.  The  condition  to  which  Illinois  has  attained  under  the 
progress  of  the  last  thirty  years  is  a  monument  to  the  blessings  of 

industry,  enterprise,  peace  and  free  institutions. 

******** 

The  remarkable  healthfulness  of  the  climate  seems  to  more 
than  compensate  for  its  rigors,  and  the  fertility  of  the  new  soil  leads 
men  largely  to  contend  with  and  overcome  the  harshness  of  the 
elements. 

(189) 


196  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

The  energies  thus  called  into  action  have  in  a  few  years  made 
the  States  of  the  Northwest  the  granary  of  Europe;  and  that  sec- 
tion of  our  Union  which,  within  the  recollection  of  living  men,  was 
a  wilderness,  is  now  the  chief  source  of  supply  in  seasons  of 
scarcity,  for  the  suffering  millions  of  another  continent." 

Hon.  Samuel  B.  Ruggles,  of  New  York,  in  his  address  at  the 
great  Canal  convention  held  at  Chicago  in  June,  1863,  says: 
Ct  What  human  being  in  his  senses,  not  wholly  idiotic  or  utterly  blinded 
by  political  bigotry  or  lust  of  political  power,  could  assert  that  this 
God-given,  exuberant,  and  all  but  virgin  West  has  now  reached  its 
culminating  point?  For  one,  I  stand  awestruck  at  the  immeasur- 
able prospect  opening  before  us.  I  can  see  nothing  smaller, 
nothing  more  diminutive,  nothing  less  stupendous  than  a  yearly 
product  of  cereals  to  be  measured,  not  as  now,  by  hundreds  of  thou- 
sands, but  a  result  so  vast,  so  solemn,  so  fraught  with  consequences, 
so  momentous  to  our  nation  and  to  the  world,  that  I  can  but  bow 
with  reverential  gratitude  before  such  a  wonderful  manifestation 
of  the  providence  of  our  great  Creator.  Never  before  in  human 
history  did  He  lay  out  a  garden  so  wide-spread  and  fertile;  never 
before  did  He  provide  a  granary  so  magnificent  for  the  use  of  man. 

For  what  was  ancient  Sicily,  the  granary  of  Home,  or  the  fertile 
plains  of  the  Po,  or  the  exuberant  valley  of  the  Nile  itself,  compared 
with  this,  our  great  continental  garden,  pouring  forth  yearly  vol- 
umes of  food  so  enormous,  and  yet  so  inevitably,  resistlessly  increas- 
ing? In  view  of  such  a  power  to  feed  our  race  who  will  venture 
to  depict  or  limit  the  commercial  and  the  political  destiny  of  this 
unequaled  portion  of  the  earth  ?  " 

And  he  then  adds:  "  The  manifest  destiny  and  high  office  of  this 
splended  granary,  of  which  this  Chicago  of  yours  and  of  ours  is  the 
brilliant  center,  stands  out  as  plain  as  the  sun  in  the  heavens. 

It  is  unmistakably  marked  by  the  finger  of  God  on  these  wide- 
spread lands  and  waters,  that  it  is  to  be  our  special  duty  to  feed, 
not  ourselves  of  the  new  world  alone,  but  that  venerable,  moss- 
covered  fatherland — that  old  father  world  of  ours  across  the  ocean 
— as  the  pious  Grecian  daughter  nourished  her  aged  sire;  to  carry 
abundant  food,  and  that  too  in  the  truest  Christian  spirit,  to  that 
over-crowded  but  under-fed  European  Christendom,  to  which  we 
owe  our  common  origin." 

Illinois  is  now  the  third  State  in  the  American  Union,  and  what- 
ever she  does  will  be  sure  to  attract  attention.  As  Mr.  Webster 


PUBLIC    VIRTUE.  lOl 

onco  said,  "the  age  is  extraordinary,  the  spirit  that  actuates  it  is 
peculiar  and  marked,  and  our  own  relation  to  the  times  we  live  in 
and  to  the  questions  which  interest  them,  is  equally  marked  and 
peculiar.  We  are  placed  by  our  good  fortune  and  the  wisdom  and 
valor  of  our  ancestors,  in  a  condition  in  which  we  can  act  no  obscure 
part.  Be  it  for  honor  or  dishonor,  whatever  we  do  is  sure  to  attract 
the  observation  of  the  world.  As  one  of  the  free  States  among  the 
nations,  as  a  great  and  rising  republic,  it  would  be  impossible  for 
us,  if  we  were  so  disposed,  to  prevent  our  principles,  our  sentiments 
and  our  example  from  producing  some  effect  upon  the  opinions  and 
hopes  of  society  throughout  the  civilized  world.  It  rests,  probably, 
with  ourselves  to  determine  whether  the  influence  of  these  shall  be 
salutary  or  pernicious." 

If  constitution-making  is  to  be  further  indulged  in  in  this  State, 
then  let  us  have  the  best  that  can  be  framed,  and  let  there  be  abun- 
dance of  time  in  which  to  frame  it.  Any  defects  not  of  a  serious 
nature  can  be  reached  and  remedied  most  speedily  by  amendments, 
as  the  Constitution  now  provides;  and  if  provision  was  made  for 
submitting  several  amendments  to  the  people  at  one  and  the  same 
time,  there  is  no  reason  whatever  why  every  contingency  may  not 
be  promptly  met  at  once,  and  that,  too,  without  delay. 


CHAPTEE  XXXYIIL 
Public  Virtue. 

BUT  there  is  one  thing  that  no  constitutional  convention  can 
create,  no  organic  law  establish,  and  no  law  preserve,  and  that 
is  public  virtue. 

To  maintain  a  representative  government,  men  must  have  the 
capacity  for  self-government  and  no  nation  can  have  and  possess 
that  capacity  without  they  are  fitted  for  it  by  habits  which  involve 
individual  responsibility  and  perfect  honesty  and  integrity  of  pur- 
pose. The  Mexican,  Central  and  South  American  republics  have 
constitutions  similar  to  ours.  But  they  do  not  operate  with  the 
energy,  efficiency,  tranquillity  and  good  results  that  we  experience. 


1  92  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

The  difference  is  not  in  the  form  and  plan  of  their  constitutions, 
but  in  the  people.  They  have  not  yet  attained  the  education,  poise, 
elevation,  virtue  and  habits  which  inspire  them  to  co-operate  to 
make  their  government  as  good  as  possible  and  to  repose  with  con- 
fidence upon  its  stability  and  justice.  Hence  revolts,  rebellions  or 
revolutions  need  scarcely  surprise  us.  These  are  cruel  and  wasteful 
educators,  however,  and  should  be  avoided. 

A  government  influences  the  people,  and  they  in  turn,  the  gov- 
ernment. No  government  within  the  range  of  civilization  can 
escape  the  influences  of  the  civilization  of  the  age.  Much  less  so 
now,  when  steam  and  electricity  annihilate  the  barriers  of  time  and 
distance.  Our  government  exists  so  near  the  people  that  the  just 
complaint  of  the  feeblest  citizen  can  be  heard.  The  people  appeal 
if  need  be,  to  the  government,  without  fear  of  rebuke,  and  should  be 
able  to  rely  upon  it  with  imnly  confidence.  The  government 
adapts  itself  to  the  people  and  the  people  to  their  government. 

The  stability  of  our  government  must  ever  depend  upon  the  intel- 
ligence and  common  sense  of  the  people,  arid  in  order  that  their  con- 
fidence may  not  be  impaired  they  must  insist  upon  the  conscientious 
discharge  of  every  duty  incumbent  upon  their  representatives  and 
a  fair  and  impartial  administration  of  the  law  by  every  one  of  their 
public  servants. 

Every  evasion  of  law  and  every  perversion  of  the  same  is  a 
crime,  and  every  one  guilty  of  such  conduct  should  be  arraigned  at 
the  bar  of  public  conscience,  and  punished  for  it.  There  are  men 
who  are  ready  to  justify  every  scheme  that  is  formed,  every  plot 
that  is  laid,  and  every  intrigue  that  is  entered  into  in  order  to  pro- 
mote and  achieve  party  success. 

If  men  commit  crimes  against  the  elective  franchise,  stuff  the 
ballot  box,  indulge  in  wholesale  perjury  to  aid  and  assist  in  the 
wholesale  naturalization  of  men  who  are  not  entitled  to  that  privi- 
lege, they  should  be  punished,  and  that,  too,  severely,  and  when 
they  have  been  once  fairly  tried  and  convicted,  then  the  governor 
should  be  relieved  of  the  constant  and  increasing  importunities  of 
those  who  undertake  to  mitigate  and  excuse  such  offenses,  ren- 
dering his  life  miserable  by  personal  appeals  or  petitions  such  as 
have  at  times  beset  his  pathway  within  the  memory  of  men  still 
living. 

It  should  be  understood  by  everybody  that  "the  way  of  the 
transgressor  is  hard,"  and  that  punishment  stern  and  unrelenting 


PUBLIC   VIRTUE.  193 

will  bs  moted  out  to  all  those  who  undertake  to  thwart  the  will  of 
the  people  either  by  fraudulent  voting  or  by  making  false  returns, 
or  by  stealing  votes  after  they  have  once  been  deposited  in  the 
ballot  box. 

If  there  are  in  the  United  States  or  in  this  State  any  high 
crimes  and  misdemeanors  left,  these  acts  constitute  them. 

"We  agree  with  ex-President  Cleveland  in  the  views  which  he 
expressed  in  his  recent  speech  before  the  Young  Men's  Democratic 
Club  at  Philadelphia  on  General  Jackson's  day,  when  he  says: 

"  I  believe  that  among  our  people  the  ideas  which  endure  and 
which  inspire  warm  attachment  and  devotion  are  those  having  some 
elements  which  appeal  to  the  moral  sense.  "When  men  are  satisfied 
that  a  principle  is  morally  right  they  become  its  adherents  for  all 
time.  There  is  sometimes  a  discouraging  distance  between  what 
our  fellow  countrymen  believe  and  what  they  do  in  such  a  case,  but 
their  action  in  accordance  with  their  belief  may  always  be  confi- 
dently expected  in  good  time.  A  government  for  the  people  and 
by  the  people  is  everlastingly  right.  As  surely  as  this  is  true,  so 
surely  is  it  true  that  party  principles  which  advocate  the  absolute 
equality  of  American  manhood,  and  an  equal  participation  by  all 
the  people  in  the  management  of  their  government  and  in  the  bene- 
fit and  protection  which  it  affords,  are  also  right.  Here  is  common 
ground,  where  the  best  educated  thought  and  reason  may  meet  the 
most  impulsive  and  instinctive  Americanism.  It  is  right  that  every 
man  should  enjoy  the  result  of  his  labor  to  the  fullest  extent  con- 
sistent with  his  membership  in  civilized  community.  It  is  right 
that  our  government  should  be  but  the  instrument  of  the  people's 
will,  and  that  its  cost  should  be  limited  within  the  lines  of  strict 
economy.  It  is  right  that  the  influence  of  the  government  should 
be  known  in  every  humble  home  as  the  guardian  of  frugal  comfort 
and  content,  and  a  defense  against  unjust  exactions,  and  the  unearned 
tribute  persistently  coveted  by  the  selfish  and  designing.  It  is 
right  that  efficiency  and  honesty  in  public  service  should  not  be 
sacrificed  to  partisan  greed;  and  it  is  right  that  the  suffrage  of  our 
people  should  be  pure  and  free." 

For  ages  there  has  been  a  class  of  writers  and  speakers,  some  of 
them  ignorant,  others  dishonest,  who  have  been  constantly  repre- 
senting that  governments  are  able  to  do,  and  bound  to  do,  things 
which  no  government  can,  without  great  injury  to  the  country,  do. 
13 


194  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

Every  man  of  any  sense  knows  that  the  people  support  the 
government,  and  if  it  is  a  good  government,  ought  to  support  it. 
But  the  doctrine  that  it  is  the  business  of  the  government  to  sup- 
port the  people  is  not  only  unsound  but  unwise,  impracticable  and 
impossible.  On  the  physical  condition  of  the  great  body  of  the 
people,  government  acts,  not  as  a  specific,  but  as  an  alterative. 
Its  operation  is  powerful,  indeed,  and  certain,  but  gradual  and  indi- 
rect. The  business  of  government  is  not  directly  to  make  the 
people  rich,  but  to  protect  them  in  making  themselves  rich;  and  a 
government  which  attempts  more  than  this  is  precisely  the  govern- 
ment which  is  likely  to  perform  less.  Governments  do  not  and 
can  not  support  the  people.  A  great  statesman  of  England  once 
yaid:  "  We  have  no  miraculous  power,  we  have  not  the  rod  of  the 
Hebrew  lawgiver,  we  can  not  rain  down  bread  on  the  multitude 
from  Heaven,  we  can  not  smite  the  rock  and  give  them  to  drink, 
we  can  give  them  only  freedom  to  employ  their  industry  to  the 
best  advantage  and  security  in  the  enjoyment  of  what  their  industry 
has  acquired." 

Seasons  of  distress  will  come  to  every  country,  but  they  are 
almost  always  beyond  government  control.  When  such  a  period 
arrives  the  effect  upon  the  community  and  upon  the  people  gen- 
erally, is  not  only  very  marked,  but  very  peculiar.  It  often  makes 
wise  men  irritable,  unreasonable,  credulous,  eager  for  immediate 
relief,  and  heedless  of  remote  consequences.  There  is  no  quackery 
in  medicine,  in  religion  or  politics,  which  may  not  impose  even  on  a 
powerful  mind  when  that  mind  has  been  disordered  by  pain'or  fear. 

At  such  a  time  distress  inflames  the  passions  and  makes  tho#e 
who  are  sufferers  believe  all  those  who  flatter  them,  and  to  distrust 
those  who  serve  them.  • 

Men  should  know  the  truth  even  though  they  denounce  and  con- 
demn those  who  tell  it  to  them. 

Mankind  do  not  live  in  alms-houses,  and  it  is  only  by  labor, 
constant  and  unceasing,  and  prudence  and  forethought,  that  anybody 
this  side  of  eternity  can  keep  themselves  from  want  and  dependency. 


CHAPTER  XXXIX. 

No  State  will  ever  be  Prosperous  under  any  Constitution 
unless  the  People  are  Educated. 

"~YTT~HAT  is  it  that  makes  the  great  difference  between  country 
VV  and  country?"  says  the  great  essayist  Macau  ley.  "Not  the 
exuberance  of  soil ;  not  the  mildness  of  climate;  not  mines,  nor  havens, 
nor  rivers.  These  things  are,  indeed,  valuable  when  put  to -their 
proper  use  by  human  intelligence;  bat  human  intelligence  can  do  much 
without  them,  and  they,  without  human  intelligence,  can  do  nothing. 
They  exist  in  the  highest  degree  in  regions  of  which  the  inhabitants 
are  few  and  squalid  and  barbarous  and  naked  and  starving;  while  on 
sterile  rocks,  amidst  unwholesome  marshes  and  under  inclement  skies, 
may  be  found  immense  populations,  well  fed,  well  lodged,  well 
clad,  well  governed.  Nature  meant  Egypt  and  Sicily  to  be  the 
gardens  of  the  world.  They  once  were  so.  Is  it  anything  on  the 
earth  or  in  the  air,  that  makes  Scotland  more  prosperous  than 
Egypt,  that  makes  Holland  more  prosperous  than  Sicily?  No;  it 
was  the  Scotchman  that  made  Scotland ;  it  was  the  Dutchman  that 
made  Holland.  Look  at  North  America.  Two  centuries  ago  the 
sites  on  which  now  arise  mills,  and  hotels,  and  banks,  and  colleges, 
and  churches,  and  the  senate  houses  of  flourishing  commonwealths, 
were  deserts  abandoned  to  the  panther  and  the  bear.  What  has 
made  the  change  ?  Was  it  the  rich  mould  or  the  abundant  rivers  ? 
No  ;  the  praries  were  as  fertile,  the  Ohio  and  the  Hudson  were  as 
broad  and  as  full  then  as  now.  Was  the  improvement  the  effect 
of  some  great  transfer  of  capital  from  the  old  world  to  the  new? 
No:  the  emigrants  generally  brought  out  with  them  no  more  than  a 
pittance,  but  they  carried  out  the  English  heart  and  head  and  arm, 
and  the  English  heart  and  head  and  arm  turned  the  wilderness  into 
cornfield  and  orchard  and  the  hugo  trees  of  the  primeval  forest 
into  cities  and  fleets.  Man — man  is  the  great  instrument  that  pro- 
duces wealth.  The  natural  difference  between  Carnpagna  and 
Spitzbergen  is  trifling  when  compared  with  the  difference  between 
a  country  inhabited  by  men  full  of  bodily  and  mental  vigor  and  a 
country  inhabited  by  men  weak  in  mental  arid  bodily  decrepitude.'' 

(195) 


196  CONSTITUTIONAL   HISTORY  OF  ILLINOIS. 

Again  he  says,  "  I  believe  that  it  is  the  right  and  the  duty  of 
the  State  to  provide  means  of  education  for  the  common  people. 
This  proposition  seems  to  me  to  be  implied  in  every  definition  that 
has  ever  yet  been  given,  of  the  functions  of  a  government.  About 
the  extent  of  those  functions,  there  has  been  much  difference  of 
opinion  among  ingenious  men.  There  are  some  who  hold  that  it  is 
the  business  of  a  government  to  meddle  with  every  part  of  the 
system  of  human  life;  to  regulate  trade  by  bounties  and  prohibi- 
tions; to  regulate  expenditure  by  sumptuary  laws;  to  regulate 
literature  by  a  censorship;  to  regulate  religion  by  an  inquisition. 
Others  go  to  the  opposite  extreme  and  assign  to  government  a  very 
narrow  sphere  of  action. 

But  the  very  narrowest  sphere  that  ever  was  assigned  to 
governments  by  any  school  of  political  philosophy  is  quite  wide 
enough  for  my  purpose.  On  one  point  all  the  disputants  are  agreed. 
They  unanimously  acknowledge  that  it  is  the  duty  of  every  govern- 
ment to  take  order  for  giving  security  to  the  persons  and  property 
of  the  community.  This  being  admitted,  can  it  be  denied  that  the 
education  of  the  common  people  is  a  most  effectual  means  of  secur- 
ing our  persons  and  our  property  ?  The  education  of  the  poor  is  a 
matter  which  deeply  concerns  evei\y  commonwealth.  Just  as  the 
magistrate  ought  to  interfere  for  the  purpose  of  preventing  the 
spread  of  leprosy  among  the  people,  he  ought  to  interfere  for  the 
purpose  of  stopping  the  progress  of  the  moral  distempers  which 
are  inseparable  from  ignorance.  Nor  can  this  duty  be  neglected 
without  danger  to  the  public  peace." 

Mr.  Palfrey  in  his  History  of  New  England  says,  2d,  p.  34,  that 
"  The  democratic  people  of  New  England,  in  recent  times  have  sup- 
posed it  to  be  no  invasion  of  the  citizen's  liberty  to  require  him 
to  submit  his  children  to  instruction  in  reading,  writing  and  arith- 
metic, to  the  end  that  they  may  not  grow  up  to  be  incapable  and 
shiftless,  chargeable  and  troublesome. 

And  on  similar  grounds  their  predecessors  in  the  primitive  age 
considered  it  to  be  conducive  to  the  public  good  and  unobjectiona- 
ble to  the  individual  that  he  should  be  saved  from  the  misery  to 
himself  and  the  mischievousness  to  his  neighbors,  of  ignorance 
respecting  morals  and  religion." 

Edward  Everett  said :  u  From  the  first  settlement  of  New  Eng- 
land, and  from  an  early  stage  of  their  progress  in  many  of  the 
other  States,  one  of  the  most  prominent  traits  of  the  character  of 


RIGHT  OF  ELECTIVE  FRANCHISE.  197 

our  population  has  been  to  provide  and  to  diffuse  the  means  of 
education. 

The  village  school  house  and  the  village  church  are  the  monu- 
ments of  our  republicanism;  to  read,  to  write  and  to  discuss  grave 
matters  in  their  primary  assemblies,  are  the  licentious  practices  of 
our  democracy." 

Educate  the  people,  was  the  first  admonition  addressed  by  Penn 
to  the  colony  which  he  founded. 

Educate  the  people,  was  the  legacy  of  Washington  to  the  Nation 
that  he  saved.  "  Educate  the  people,"  was  the  unceasing  exhorta- 
tion of  Jefferson,  and  in  this  exhortation  is  joined  the  unanimous 
voice  of  all  the  wise  and  good  of  all  ages  and  of  both  hemispheres. 


CHAPTEK  XL. 

The    Right  of   American    Citizens    to    be    Protected    In 
Exercising-  the  Elective  Franchise. 

A  GREAT  deal  has  been  said,  first  and  last,  in  regard  to  the 
meaning  and  import  of  the  declaration  made  by  those  who 
lived  under  the  protecting  power  of  the  Roman  eagle,  "Jam  a  Ro- 
man citizen." 

The  majesty  and  grandeur  of  such  an  utterance  must  have  been 
very  great,  for  it  signified  legions  of  soldiers  and  armies  of  men 
who  were  ready  to  resent  insult,  and  to  conquer  and  destroy  all  who 
sought  to  resist  the  power  of  the  State. 

"  Then  none  was  for  a  party, 

Then  all  were  for  the  State; 
Then  the  great  man  helped  the  poor, 

And  the  poor  man  loved  the  great. 
Then  lands  were  fairly  portioned, 

Then  spoils  were  fairly  sold. 
The  Romans  were  like  brothers 

In  the  brave  old  days  of  old. 

"  Now  Roman  is  to  Roman 

More  hateful  than  a  foe," 
And  the  tribunes  beard  the  high 
And  the  fathers  grind  the  low. 


108  CONSTITUTIONAL  HISTORY  OF  ILLINOIS. 

As  we  wax  hot  in  faction, 

In  battle  we  wax  cold. 
Wherefore  men  fight  not  as  they  fought 

In  the  brave  old  days  of  old." 

These  were  times  when  men  were  chained  to  chariot  wheels  to 
grace  a  Roman  holiday,  and  mothers  smiled  to  see  "  their  infants 
quartered  with  the  hands  of  war,"  and  when  it  only  required  "  a 
monarch's  voice  to  cry  havoc  and  let  slip  the  dogs  of  war." 

Contrast  this  condition  of  things  with  that  of  an  American,  and 
let  us  inquire  what  it  is  to  bo  an  American  citizen. 

It  is  a  greater  honor  and  a  far  more  lordly  position  than  that 
which  was  ever  enjoyed  by  any  of  the  imperial  hosts  that  divided 
"  all  Gaul  into  three  parts,"  or  who  set  up  their  mile-stones  in  the 
sea-girt  isle  of  the  Britons. 

The  strongest  government  is  that  in  which  there  is  the  assertion 
of  personality.  That  is  the  realization  of  the  freedom  of  the  people. 

That  is  not  necessarily  a  strong  government  which  is  identified 
with  arbitrary  rule  or  arbitrary  power.  That  government  is  the 
strongest  which  develops  in  the  hearts  of  the  people  the  dignity 
and  maintenance  of  law,  the  institution  of  rights,  the  realization  of 
freedom. 

For  this  it  is  clothed  with  power  and  with  majesty  on  earth, 
such  as  never  existed  either  in  Rome  or  any  land  over  which  her 
imperial  eagles  ever  flew. 

WHO    IS   AN   AMERICAN? 

"  He  is  an  American  who,  leaving  behind  him  all  his  ancient  preju- 
dices and  manners,  receives  new  ones  from  the  new  mode  of  life  he 
has  embraced,  the  new  government  he  obeys,  and  the  new  rank  he 
holds.  He  becomes  an  American  by  being  received  in  the  broad 
lap  of  our  great  Alma  Mater.  Here  individuals  of  all  nations  are 
melted  into  a  new  race  of  men,  whose  labors  and  posterity  will  one 
day  cause  great  changes  in  the  world.  Americans  are  the  Western 
pilgrims  who  are  carrying  along  with  them  that  great  mass  of  arts, 
sciences,  vigor  and  industry,  which  began  long  since  in  the  East; 
They  will  finish  the  circle." — Letters  of  American  Farmer. 

The  practical  operation  of  popular  institutions  of  government 
provides,  in  innumerable  ways,  a  demand  for  every  species  of  intel- 
lectual effort,  not  merely  within  the  circle  of  a  capital,  but  through- 
out the  land.  In  short,  wherever  man  has  been  placed  by  Provi- 


RIGHT  OF  ELECTIVE   FRANCHISE.  199 

denco  endowed  with  natural  capacities  of  improvement,  there  the 
genius  of  the  republic  visits  him,  with  a  voice  of  encouragement 
and  hope.  Every  day  he  receives  from  the  working  of  the  social 
system  some  new  assurance  that  he  is  not  forgotten  in  the  multitude 
of  the  people  ;  he  is  called  to  do  some  act,  to  assert  some  right,  and 
to  enjoy  some  privilege ;  and  he  is  elevated  by  this  consciousness  of 
his  social  importance  from  the  condition  of  the  serf  or  the  peasant 
to  that  of  the  freeman  and  the  citizen.  Why,  then,  should  not  the 
humblest  citizen  be  protected  in  exercising  his  right  to  vote,  even 
if  it  takes  armies  and  navies  to  accomplish  it? 

"  All  elections  shall  be  free  and  equal  " — is  the  standing  procla- 
mation in  our  Bill  of  Rights — and  it  seems  very  strange  to  us,  at 
this  day  and  age  of  the  world,  that  while  all  political  parties  admit 
the  supreme  importance  of  regulating  and  protecting  the  elective 
franchise,  and  make  it  a  part  of  their  platforms,  there  are  so  many 
who  are  utterly  opposed  to  any  laws  by  which  the  power  of  the 
government,  and  especially  that  of  the  National  Government  shall 
be  invoked  to  make  such  laws  effective.  It  is  only  a  little  over 
thirty  years  since  the  doctrine  that  we  had  no  National  Government 
at  all,  but  that  we  were  a  mere  compact  of  States,  and  that  any  acts 
of  the  National  Legislature  might  be  disregarded,  and  that  any  State 
might  secede,  and  that  there  was  no  power  to  coerce  them  to  sub- 
mission, was  universally  entertained  by  most  of  the  Southern  people, 
and  by  a  large  and  powerful  party  at  the  North  who  sympathized 
with  them.  But  these  doctrines  were  declared  to  be  erroneous, 
after  referring  them  for  settlement  to  the  dread  arbitrament  of  war, 
and  we  had  supposed  that  we  should  hear  no  more  of  them.  But 
to-day  these  same  ideas  are  revamped  and  put  forth  again,  quite  as 
offensively  as  before,  and  a  great  ado  is  being  made  over  what  is 
called  "The  Force  Bill,"  a  plain  and  simple  bill  to  regulate  the 
elective  franchise  at  National  elections,  and  of  protecting  those  who 
are  entitled  to  vote,  in  voting. 

At  the  outbreak  of  the  war  of  the  rebellion  the  cry  which  went 
up  was  "  coercion  "  and  the  horrors  of  "  coercion"  were  preached 
throughout  the  length  and  breadth  of  the  land;  to-day  it  is  "  The 
Force  Bill,"  and  men  stand  aghast  at  the  audacity  of  those  who  favor 
that  bill  or  anything  whatever  like  it.  It  is  the  same  old  cry,  and 
men  may  apologize  for  such  a  course  of  conduct  as  much  as  they 
please,  but  it  is  an  attempt  to  paralyze  the  arm  of  the  Government 


200  CONSTITUTIONAL  HISTORY  OP  ILLINOIS. 

in   its  attempt  to  protect  the  freedom  of  elections  and  to   allow 
terrorism  to  rule  supreme. 

The  United  States  is  not  only  a  government  but  a  great  National 
government,  and  the  only  government  in  this  country  that  has  the 
character  of  nationality.  It  has  jurisdiction  over  all  the  general 
legislation  and  sovereignty  which  affect  the  interests  of  the  whole 
people  equally  and  alike,  and  which  require  uniformity  of  regula- 
tion and  laws,  and  it  can  call  to  its  support  the  entire  power  of  the 
Nation  to  enforce  this  jurisdiction,  and  the  "  proposition,"  as  Mr. 
Justice  Miller  said  in  the  case  of  Ex  Parte  Yarbrougb,  110  U.  S.  658, 
"  that  the  General  Government  has  not  the  power  to  protect  the 
elections  upon  which  its  existence  depends  from  violence  and  force, 
is  supported  by  the  old  argument,  often  heard,  often  repeated,  and 
in  this  court  never  assented  to,  that  when  a  question  of  power  of 
Congress  arises,  the  advocate  of  the  power  must  be  able  to  place 
his  finger  on  words  which  expressly  granted  it. 

It  destroys  at  one  blow,  in  construing  the  Constitution  of  the 
United  States,  the  doctrine  universally  applied  to  all  instruments  in 
writing,  that  what  is  implied  is  as  much  a  part  of  the  instrument  as 
what  is  expressed.  This  principle,  in  its  application  to  the  Consti- 
tution of  the  United  States,  more  than  to  almost  any  other  writing, 
is  a  necessity  by  reason  of  the  inherent  inability  to  put  into  words 
all  derivative  powers,  a  difficulty  which  the  instrument  itself  recog- 
nizes, by  conferring  upon  Congress  the  authority  to  pass  all  laws 
necessary  and  proper  for  carrying  into  execution  the  powers  expressly 
granted,  and  all  other  powers  vested  in  the  government  or  any 
branch  of  it  by  the  Constitution." 

"The  prejudices  and  apprehension  as  to  the  central  govern- 
ment which  prevailed  when  the  Constitution  was  adopted,"  said 
Mr.  Justice  Swayne,  in  16  Wallace,  128,  "were  dispelled  by  the 
light  of  experience.  The  public  mind  became  satisfied  that  there 
was  less  danger  of  tyranny  in  the  head  than  of  anarchy  and  tyranny 
in  the  members.  Before  the  war  ample  protection  was  given 
against  oppression  by  the  Union,  but  little  was  given  against  wrong 
and  oppression  by  the  States." 

We  insist,  in  the  language  of  Judge  Harlan  in  109  U.  S.  26-53, 
"that  the  National  Legislature  may,  without  transcending  the  limits 
of  the  Constitution,  do  for  human  liberty  and  the  fundamental 
rights  of  American  citizenship  what  it  did,  with  the  sanction  of  the 


EIGHT  OF  ELECTIVE  FRANCHISE".  201 

United  States  Supreme  Court,  for  the  protection  of  slavery  and  the 
rights  of  the  masters  of  fugitive  slaves." 

We  think  that  human  liberty  and  the  rights  of  an  American 
citizen  in  exercising  the  elective  franchise,  are  entitled  to  just  as 
much  consideration  as  that  of  a  slave-holder  for  his  slave  when  he 
hunted  them  all  over  the  United  States,  and  that  the  election  bill 
now  pending  before  the  United  States  Congress  is  no  more  a  force 
bill  than  any  other  bill  which  provides  a  penalty  for  the  commis- 
sion of  a  crime. 

The  idea  that  it  is  the  business  of  the  State  governments,  and 
those  alone,  to  provide  laws  for  the  protection  of  American  citizens 
in  casting  their  votes  at  National  elections  and  for  National  repre- 
sentatives is,  we  submit,  simply  absurd,  and  is  the  last  lingering  relic 
of  the  confederate  idea  of  our  government  which  has  come  down 
to  us  from  pro-slavery  days  "befo  the  wah." 

Is  it  true  that  National  citizenship  of  itself  has  no  attribute  of 
any  practical  value. 

Is  it  true  that  the  higher  the  source  and  the  more  inalienaVe 
the  rights  of  man,  the  less  they  are  within  the  protection  afforded 
by  National  citizenship  and  the  National  Constitution  and  the  more 
they  are  exposed  to  invasion  by  the  State  ? 

We  believe  that  our  Government  is  a  National  Government,  and 
that  the  States  should  assist  that  government  in  upholding  it  in  the 
exercise  of  all  its  just  powers,  and  that  in  the  language  of  our  Bill 
of  Rights,  "  All  elections  shall  be  free  and  equal."  These  words 
should  be  something  else  than  "sounding  brass  and  tinkling 
cymbals,"  and,  if  it  is  necessary  to  call  a  constitutional  convention 
to  give  them  force  and  effect,  then  reckon  this  as  one  of  the  needs 
of  a  convention. 

The  basis  of  all  constitutions  and  all  laws  must  be  eternal  justice, 
and  all  the  rights  of  all  the  citizens  of  this  republic  must  be  abso- 
lutely equal  before  the  laws. 

The  days  of  provincialism  are  over  in  this  country,  and.  as  John 
Bright  said  in  one  of  his  great  speeches  at  Birmingham,  Dec.  18, 
1862,  upon  America,  "I  can  not  believe    that  civilization  in  its 
journey  with  the  sun  will  sink  into  endless  night  in  order  to  gratify 
the  ambition  of  the  leaders  of  this  revolt,  who  seek  to 
'  Wade  through  slaughter  to  a  throne 
And  shut  the  gates  of  mercy  on  mankind.' 

I  have  another  and  a  far  brighter  vision  before  my  gaze.  It 
may  be  but  a  vision,  but  I  will  cherish  it.  I  sec  one  vast  confedoru- 


202  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

tion  stretching  from  the  frozen  North  in  unbroken  line  to  the  glow- 
ing South,  and  from  the  wild  billows  of  the  Atlantic  westward  to  the 
calmer  waters  of  the  Pacific  main,  and  I  see  one  people,  and  one 
language,  and  one  law  and  one  faith,  and  over  all  the  wide  conti- 
nent, the  home  of  freedom  and  a  refuge  of  the  oppressed  of  every 
race  and  of  everv  clime." 


CHAPTER  XLI. 
Conclusion. 

WHEN  the  foundations  of  this  republic  were  laid  the  world 
was  tilled  with  kings  and  despotism  was  supreme.  When 
the  first  Constitution  of  this  State  was  formed,  steamboats  had  but 
just  begun  to  run  on  the  Hudson  river,  locomotives  had  been  just 
heard  of  in  England,  and  it  took  a  month  to  cross  the  Atlantic. 
Now  behold  the  change! 

"Power  has  come  to  dwell  with  every  people,  from  the  Arctic  Sea 
to  the  Mediterranean,  from  Portugal  to  the  borders  of  Russia. 
From  end  to  end  of  the  United  States  the  slave  has  become  a  free 
man,  and  the  various  forms  of  bondage  have  disappeared  from 
European  Christendom.  Abounding  harvests  of  scientific  discovery 
have  been  garnered  by  numberless  inquisitive  minds,  and  the  wildest 
forces  of  nature  have  been  taught  to  become  the  docile  helpmates 
of  man. 

The  application  of  steam  to  the  purpose  of  travel  on  land  and 
on  water,  the  -employment  of  a  spark  of  light  as  the  carrier  of 
thought  across  continents  and  beneath  oceans,  have  made  of  all  the 
inhabitants  of  the  earth  one  society.  The  morning  newspaper 
gathers  up  and  brings  us  the  noteworthy  events  of  the  last  four 
and  twenty  hours,  in  every  quarter  of  the  globe. 

All  States  are  beginning  to  form  parts  of  one  system. 

The  '  new  nations,'  which  Shakspeare's  prophetic  eye  saw  rising 
on  our  eastern  shore,  dwell  securely  along  two  oceans,  midway 
between  their  kin  in  Great  Britain,  on  the  one  side,  and  the  oldest 
surviving  empire  on  the  other. 

More  than  two  thousand  years  ago  it  was  truly  said  that  the 
nature  of  justice  can  be  more  easily  discerned  in  a  State  than  in  one 
man. 

It  may  now  be  studied  in  the  collective  state.     The  ignorance 


CONCLUSION.  203 

and  prejudices  that  come  from  isolation  are  worn  away  in  the  con- 
flict of  the  forms  of  culture.  We  learn  to  think  the  thought,  to 
hope  the  hope  of  mankind.  Former  times  spoke  of  the  dawn  of 
civilization  in  some  one  land;  we  live  in  the  morning  of  the  world. 
Day  by  day  the  men  who  guide  public  affairs,  are  arraigned  before 
the  judgment  seat  of  the  race.  A  government  which  adopts  a 
merely  selfish  policy  is  pronounced  to  be  the  foe  of  the  human 
family.  The  statesman  who  founds  and  builds  up  the  well-being 
of  his  country  on  justice,  has  all  the  nations  fora  cloud  of  witnesses, 
and  as  one  of  our  own  poets  has  said,  l  The  linked  hemispheres 
attest  his  deed.' 

He  thrills  the  world  with  joy,  and  man  becomes  a  nobler  spirit 
as  he  learns  to  gauge  his  opinions  and  his  acts  by  a  scale  commen- 
surate with  his  nature." 

The  days  of  war  are  over,  and  bright  and  tranquil  years  of  peace 
have  succeeded.  In  no  country  that  exists  beneath  the  sun  do  we 
mark  such  progress  in  all  the  arts  of  life,  such  toleration  of  domes- 
tic peace,  such  security  for  liberty  and  temperate  freedom  as  we 
behold  here.  There  is  no  place  in  all  this  broad  land  so  well  fitted 
to  excite  in  our  minds  sad  yet  grateful  feelings  as  the  spot  on  which 
we  are  now  assembled. 

It  was  at  the  fearful  price  of  one  whose  mortal  remains  repose 
in  yonder  vale,  but  whose  memory  is  cherished  by  the  inhabitants  of 
the  earth  with  love  and  affection,  that  justice  and  freedom  were 
secured.  No  one  since  the  days  of  the  inspired  lawgiver,  who  after 
long  communion  with  the  Ruler  of  the  Universe  descended  from 
the  mountain  tops  of  Sinai  with  awful  aspect  and  shining  face,  has 
ever  exerted  so  great  an  influence  upon  the  human  race,  as  he  who 
fell  beneath  the  blows  of  an  assassin  while  overborne  by  the  weight 
of  his  country's  cares. 

A  few  years  ago  he  lived  and  moved  among  us  with  no  preten- 
sions to  greatness,  but  a  leader  of  acknowledged  power  and  of  unsur- 
passed eloquence.  He  was  a  member  of  this  bar,  and  scores  M'ho 
hear  me  have  met  him  in  the  court  room;  have  traveled  with  him 
on  the  circuit;  have  tried  cases  with  and  against  him  and  knew 
him  well.  He  was  born  nine  years  before  the  adoption  of  our  first 
Constitution,  and  knew  of  the  efforts  put  forth  at  that  time  to  make 
this  a  slave  State.  Soon  after  he  attained  his  majority,  he  took 
part  in  the  legislation  of  his  adopted  State  ;  was  one  who  by  his 
vote  and  influence  helped  to  remove  the  capital  from  Vandalia  to 


204  CONSTITUTIONAL    HISTORY  OF  ILLINOIS. 

this  city;  was  well  acquainted  witli  Ninian  Edwards,  Jesse  B. 
Thomas,  Elias  Kent  Kane,  Governor  Coles,  Governor  Bond,  Daniel 
P.  Cook,  Judge  Lockwood  and  all  of  that  class  of  persons  who  took 
part  in  the  great  struggle  for  freedom  on  our  soil  in  1822.  Ever}7 
libre  of  his  being  was  inwrought  with  sympathy  for  the  poor,  the 
down-trodden  arid  the  oppressed,  and  his  life  was  as  grand  as  any 
of  the  holy  prophets  of  old. 

He  was  a  natural  born  leader  of  men,  and  was  known  in  his  own 
region  of  the  world  as  the  "  rail  splitter,"  long  before  his  fame  had 
extended  to  that  of  neighboring  States. 

He  took  ground  against  slavery  at  a  very  early  period,  and  never 
ceased  his  opposition  to  it  until  his  lips  were  closed  in  death. 

On  the  soil  of  Illinois  occurred  in  1858,  before  the  breaking  out 
of  the  war,  when  the  slave-holders  were  seeking  to  extend  slavery 
into  the  new  States  beyond  the  Mississippi,  one  of  the  greatest  dis- 
cussions upon  constitutional  law  and  the  genius  of  our  institutions 
that  ever  occurred  in  the  history  of  this  country.  It  was  on  the 
17th  of  June,  1858,  that  Mr.  Lincoln  struck  the  key  note  of  oppo- 
sition to  slavery  in  this  country,  when  he  declared  in  yonder  State 
House  that,  "a  house  divided  against  itself  can  not  stand.  I 
believe  this  government  can  not  endure  permanently  half-slave  and 
half-free.  I  do  not  expect  the  Union  to  be  dissolved.  I  do  not 
expect  the  house  to  fall,  but  I  do  expect  it  will  cease  to  be  divided. 
It  will  become  all  one  thing  or  all  the  other." 

No  proclamation  was  ever  sent  forth  by  any  commander  of 
armies  or  ruler  of  nations  which  was  attended  with  such  broad  and 
lasting  consequences.  If  it  had  been  inspired  from  on  high  it 
could  not  have  been  attended  with  more  force  or  carried  with  it 
greater  weight. 

The  first  sentence  was  the  announcement  of  an  absolute  truth 
embodied  in  a  plain  and  homely  axiom.  The  other  portion  of  the 
speech  which  we  have  quoted  was  uttered  as  his  belief  and  expec- 
tation, but  it  was  the  truth  of  prophesy  itself.  It  went  like  a  pro- 
cession over  the  land  and  over  the  sea.  It  was  like  a  firebell  in  the 
night  time  and  the  contest  for  supremacy  between  the  hosts  of 
slavery  and  of  freedom  commenced  from  that  hour,  and  never 
ceased  until  white-winged  peace  folded  her  pinions  beneath  the 
app'e  tree  at  Appomattox. 

The  generation  to  which  he  belonged  is  fast  passing  away,  but 


CONCLUSION.  205 

let  it  be  here  recorded  that  no  one  ever  left  a  sweeter  memory  or  a 
brighter  example  to  his  countrymen  than  Abraham  Lincoln,  the 
great  lawgiver  of  Illinois. 

k'And,  now,  we  have  done.  The  sceptre  may  pass  away  from  us. 
Unforeseen  accidents  may  derange  our  most  profound  schemes  of 
policy,  victory  may  be  inconstant  to  our  arms.  But  there  are  tri- 
umphs which  are  followed  by  no  reverse.  There  is  an  empire 
exempt  from  all  natural  causes  of  decay.  Those  triumphs  are  the 
pacific  triumphs  of  reason  over  barbarism;  that  empire  is  the 
imperishable  empire  of  our  arts,  our  literature  and  our  laws." 


TJ^ 


• 


